\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 1
22-JAN-04
15:28
COMPARATIVE LAW AT THE SERVICE OF
DEMOCRACY: A READING OF AROSEMENA’S
CONSTITUTIONAL STUDIES OF THE
LATIN AMERICAN GOVERNMENTS
Miguel González Marcos*
I. CONSTITUTIONAL STUDIES FOR A COMMON
MOTHERLAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. BASICS ABOUT CONSTITUTIONAL STUDIES . . . . . . . . . . . . . . . . .
A. Arrangement and Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Theory and Utopia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Imaginable Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. INTELLECTUAL INFLUENCES IN CONSTITUTIONAL STUDIES .
A. Fundamental Models: Tocqueville and Hildreth . . . . . . . .
B. Significant Models: Mill, Laboulaye, and Colmeiro . . . . .
C. Comparative Law Method in Constitutional Studies . . .
IV. READINGS OF CONSTITUTIONAL STUDIES . . . . . . . . . . . . . . . . . .
A. Reviewing Constitutional Studies . . . . . . . . . . . . . . . . . . . . . .
B. Constitutional Studies and the Rise of Comparative
Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Justo Arosemena: Unexplored Precursor . . . . . . . . . . . . . . .
V. CONSTITUTIONAL STUDIES IN THE LATIN AMERICAN
LEGAL TRADITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
260
269
269
273
277
280
282
289
300
305
305
R
312
318
R
322
R
* Miguel González Marcos is a lawyer admitted to the bar in the Republic of
Panama, Minnesota, and New York. He worked for American and Panamanian law
firms, and was a Professor of Law at the University of Panama. His work in
constitutional law has led to a number of publications, including co-authorship of the
1994 Project for a Panamanian Constitution. He did his LL.B. at the University of
Panama, his Ph.D. at the Johann Wolfgang Goethe University, Frankfurt, his J.D. at
the State University of New York at Buffalo, and his LL.M. at New York University.
My gratitude to Professors John Reid of New York University Law School, and
Janet Lindgren of the State University of New York at Buffalo Law School, for their
suggestions on earlier drafts of this paper. Likewise, I would like to thank Doctor
Carlos Iván Zúñiga Guardia and Doctor Martha Bigelow for their encouragement. I
am indebted to the staff of the Library of Congress, the Edward Bennet Williams Law
Library of Georgetown University, as well as the National Libraries of Colombia,
Ecuador, Panama, and Peru for their assistance.
259
R
R
R
R
R
R
R
R
R
R
R
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 2
22-JAN-04
15:28
260 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
First Definitive Article for Perpetual Peace
The civil constitution of each state shall be republican.**
There are only texts. There is no historical reality beyond
language.***
If a text is worth studying, it is usually fruitful to subject it to charitable
interpretation, even to try to make it the best it can be.****
I. CONSTITUTIONAL STUDIES
FOR A
COMMON MOTHERLAND
In 1870, Justo Arosemena published Estudios Constitucionales sobre
los Gobiernos de América Latina (Constitutional Studies of the Governments of Latin America or “Constitutional Studies”) in France.1 A Panamanian jurist in the Republic of Colombia,2 Arosemena wanted to
promote a constitutional harmonization of the Latin American legal
orders. He thought a harmonization would make it easier for a citizen of
a Latin American country to enjoy similar rights in any Latin American
country. He imagined Latin America as if it were a common motherland,3
integrated by culture, economy, and law, but without a supranational government. Arosemena hoped that once the Latin American harmonization
were completed, an integration of the American continent would be possible.4 A utopian ideal of a universal society nourished Arosemena’s
work. He believed that in the future, humanity would be organized in
small cities linked through morality, economy, culture, and science.5 No
** Immanuel Kant, PERPETUAL PEACE: A PHILOSOPHICAL ESSAY 120 (M.
Campbell Smith trans., Macmillan Company 1917) (1903).
*** Michael Stolleis, Staat und Staatsräson in der frühen Neuzeit: Studien zur
Geschichte des öffentlichen Rechts 10 (1990) (author translation).
**** William Twining, Globalisation and Legal Theory 108 (2001).
1 JUSTO AROSEMENA, ESTUDIOS CONSTITUCIONALES SOBRE LOS GOBIERNOS DE
AMÉRICA LATINA [CONSTITUTIONAL STUDIES OF THE LATIN AMERICAN
GOVERNMENTS] (Editorial Temis, forthcoming 2004) (1870) [hereinafter
CONSTITUTIONAL STUDIES]. This study uses mainly the 1888 version of
CONSTITUTIONAL STUDIES (A. Roger y F. Chernoviz eds., Paris 1888). The paragraph
numbers of Constitutional Studies used in this article refer to the edition in press.
2 See Wolf Paul, Arosemena, Justo (1817-1896), in JURISTEN: EIN BIOGRAPHISCHES
LEXIKON VON DER ANTIKE BIS ZUM 20 JAHRHUNDERT 40-41 (Michael Stolleis ed.,
1995). See also generally Virtualology.com, Virtual American Biographies: Justo
Arosemena, at http://www.famousamericans.net/justoarosemena/; Colección Banco
de la República, Arosemena, Justo, at http://www.banrep.org/blaavirtual/artplasautor/
aroseme.html.
3 Common motherland is a translation of the expression used by Arosemena,
Patria Común. See CONSTITUTIONAL STUDIES, supra note 1, at para. 40.
4 See Ermilio Abreu Gómez, Prologue to JUSTO AROSEMENA, ENSAYOS MORALES
11, 14 (Ermilio Abreu Gómez ed., 1949) (commenting about Arosemena’s
contribution to the Pan-American ideal).
5 CONSTITUTIONAL STUDIES, supra note 1, at para. 1618.
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 3
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
261
more a source of national identity, the state would guarantee fundamental rights to every person, irrespective of nationality. Yet, the realities of
the nineteenth and twentieth centuries challenged Arosemena’s vision.
Balkanized Latin American societies fostered their national interests;6
racial bigotry led to genocide in Nazi Germany and Yugoslavia;7 religious, economic, and political radicalisms overshadowed international
relations.8 Readily dismissible as utopian, Constitutional Studies was
forgotten.
Recent events, however, vindicate Arosemena’s foresight about integration and universal society. Six South American nations of the common
market known as MERCOSUR will “allow their 250 million people to
live and work in any other member country and be granted the same
rights as the citizens of those nations.”9 Arosemena must have had a keen
imagination to anticipate this outcome in 1870, when the War of the
Triple Alliance, referred to as “the bloodiest conflict in Latin-American
history,”10 had just ended. Describing this war,11 Arosemena suggested
creating a confederation of autonomous states to bring order and peace
6 See, e.g., RICARDO GALLARDO, ESTUDIOS DE DERECHO CONSTITUCIONAL
AMERICANO COMPARADO 12-13 (1961) (stating that the Latin American nations have
cultivated a pseudo-nationalistic ideology that hinders political integration).
7 See, e.g., ERIC D. WEITZ, A CENTURY OF GENOCIDE: UTOPIAS OF RACE AND
NATION (2003) (analyzing the key role of racial and nationalistic ideologies in
twentieth century genocides).
8 Cf. THE WORLD BANK, GLOBALIZATION, GROWTH, AND POVERTY: BUILDING
AN INCLUSIVE WORLD ECONOMY 4 (2002), available at http://econ.worldbank.org/prr/
globalization/text-2857 (indicating that “[a] century ago globalization seemed as
inevitable as it does today. However, incompetent economic policies, unemployment
and nationalism drove governments into beggar-thy-neighbor protectionism.”).
9 Larry Rother, South American Trading Block Frees Movement of Its People, N.Y.
TIMES, Nov. 24, 2002, at 46. See also MERCOSUR, Acuerdo sobre Residencia Para
Nacionales de los Estados Partes del MERCOSUR, Bolivia y Chile (Dec. 5, 2002), at
http://www.mercosur.org.uy/espanol/sdyd/acuerdos/2002/
Acdo_RMI_Residencia%20_Nacionales_MCS_BOLICHI_Acta%202_02.htm (last
modified Oct. 1, 2003). Argentina, Brazil, Paraguay, and Uruguay are the full
members of MERCOSUR and Bolivia and Chile are associated countries. For a
description of the creation of MERCOSUR see WILSON NERYS FERNÁNDEZ,
MERCOSUR-ESTADOS UNIDOS, ALCA: GLOBALIZACIÓN Y REGIONALIZACIÓN EN
EL CAMBIO DE SIGLO (2000) and MERCOSUR: ENTRE LA REALIDAD Y LA UTOPÍA
(Jorge Campbell ed., 1999).
10 The War of the Triple Alliance was fought between Brazil, Argentina, and
Uruguay against Paraguay. “Paraguay had been involved in boundary and tariff
disputes with its more powerful neighbors, Argentina and Brazil, for years.”
OnWar.com, Armed conflict Events Data, War of the Triple Alliance 1864-1870, at
http://www.onwar.com/aced/data/tango/ triple1864.htm (last updated Dec. 16, 2000).
Further, the war left “Paraguay from its prewar population of approximately 525,000
with about 221,000 in 1871, of which only about 28,000 were men.” Id.
11 See CONSTITUTIONAL STUDIES, supra note 1, at paras. 423-25.
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 4
22-JAN-04
15:28
262 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
to this region.12 If this confederation were organized, argued Arosemena,
“they would be part of an honorable and respectable union, full of elements for prosperity and greatness. But this and other analogous plans,
easy to sketch on paper, and based only on reason, are usually reduce to a
category of well intentioned dreams.”13 In fact, nowadays commentators
would see this conflict more as a civil war fought within the same political
space that makes MERCOSUR possible.14 Likewise, the current negotiations toward a Free Trade Area of the Americas by 2005, which aim for
uniting the economies of the American continent, speak also for the accuracy of Arosemena’s foresight.15 Also, Arosemena is not alone in the
belief in a new global community based on transnational loyalties. Former Czech president Václav Havel, for example, suggests that states
should become simpler “and not the objects of emotional attachment.
The global community, not the nation-state, should be the locus of sovereignty and the source and protector of basic human rights.”16 Thus, as
Arosemena foresaw, integration in a global community guided by individ12
See id. at para. 439.
Id.
14 See Alberto Da Costa e Silva, Da Guerra Ao Mercosul. Evoluçãdas Relações
Diplomáticas Brasil-Paraguai, in A GUERRA DO PARAGUAI: 130 ANOS DEPOIS 171
(Maria Eduarda Castro Magalhães Marques ed., 1995) (commenting that Leslie
Bethell and León Pomer considered the War of the Triple Aliance a civil war). For Da
Costa e Silva, the War of the Triple Alliance took place in a single political space that
today facilitates the creation of MERCOSUR: “O fato de esse espaço ter uma
unidade possibilitou a rápida concretização do Mercosul,” id. at 172. According to Da
Costa e Silva, the motives that prompted the War of the Triple Alliance are the same
motives urging Brazil, Argentina, Uruguay, and Paraguay to work together today. See
id. at 172-73. See also JULIO JOSÉ CHIAVENATTO, GENOCÍDIO AMERICANO: A
GUERRA DO PARAGUAI (21st. ed. 1987) (emphasizing that Brazil, Argentina and
Uruguay were instrumental in reaching the goal of the English imperialism to
eliminate the self-sufficient Paraguayan economy); LILIA ZENEQUELLI, CRÓNICA DE
UNA GUERRA: LA TRIPLE ALIANZA 1865 - 1870 (1997).
15 See the Official Website of the Free Trade Area of the Americas, at http://
www.ftaa-alca.org/alca_e.asp. See also Johannes Henricus M. van de Ven, Western
Hemisphere Economic Integration under the Enterprise for the Americas Initiative:
Washington Consensus or Inside the Beltway Illusion? The Case of Brazil 7 (1995)
(unpublished Ph.D. dissertation thesis, Catholic University of Nijmegen), available at
http://www.newsadder.com/swissconsultin/Thes.pdf (stating that “[f]or the first time in
the history of the Americas, mutual trade is officially recognized as a key component
in integration between the United States and the Latin America.”).
16 WEITZ, supra note 7, at 253-54 (stating that “[i]n a vastly accelerated world, it
should be possible to envisage the waning of the nation-state over, say, the next 50
years.”). Cf. Christoph Konrath, Der Staat als Identitätsstifter?, in DER STAAT DER
ZUKUNFT: VORTRÄGE DER 9. TAGUNG DES JUNGEN FORUM RECHTSPHILOSOPHIE IN
DER IVR 173, 185-87 (Gralf-Peter Calliess & Matthias Mahlmann eds., 2002)
(questioning whether the state can, should, or must still have a role in
“identitätsstiftung”).
13
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 5
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
263
ual liberty is the direction in which the world is heading.17 Nonetheless, as
astonishing as Arosemena’s foresight might be, it is not the sole justification for reexamining Constitutional Studies; after all, it could have been
serendipitous.18
Still, there is a good reason for reexamining Constitutional Studies
anew. Globalization, a third wave of increasing world integration,19 is
bringing comparative constitutional law to the foreground.20 The
17
Cf. KOFI A. ANNAN, WE THE PEOPLES: THE ROLE OF THE UNITED NATIONS IN
21ST CENTURY 7 (2000), available at http://www.un.org/millennium/sg/report/
(last visited Oct. 10, 2003) (“No shift in the way we think or act can be more critical
than this: we must put people at the centre of everything we do.”). See also CORNELIA
NAVARI, INTERNATIONALISM AND STATE IN THE TWENTIETH CENTURY 1 (2000)
(indicating that in the twentieth century “occurred a transformation in the relations of
states so fundamental that later scholars may come to see it in terms of a
revolution. . . . Some called it ‘internationalisation,’ while others used the term
‘interdependence’ and still others spoke of the development of ‘world community.’ ”).
See generally DANIEL J. ELAZAR, CONSTITUTIONALIZING GLOBALIZATION: THE
POSTMODERN REVIVAL OF CONFEDERAL ARRANGEMENTS (1998); THOMAS M.
FRANCK, THE EMPOWERED SELF: LAW AND SOCIETY IN THE AGE OF INDIVIDUALISM
(1999) (suggesting developments toward a universal constitutional democracy).
18 Cf. DICK TERESI, LOST DISCOVERIES: THE ANCIENT ROOTS OF MODERN
SCIENCE–FROM THE BABYLONIANS TO THE MAYA 29 (2002) (emphasizing that no
western civilizations contributed to sciences, and arguing against Morris Kline, who
accepts that Babylonians and Egyptians “pioneered mathematics long before the
Greeks, but . . . dismisses them as pragmatists”).
19 See THE WORLD BANK, supra note 8, at 3-7 (distinguishing three waves of
globalization: 1870 to 1914, 1950 to 1980, and 1980 to present); Mark Eyskens, Culture
and Progress, in LAW IN MOTION 19, 23 (Roger Blanpain ed., 1997) (stating that
globalization is creating a universal society, but is also alienating many citizens:
“Universalism often calls for a reaction in terms of particularism and cocooning.”);
Anthony G. McGrew, Global Legal Interaction and Present-Day Patterns of
Globalization, in EMERGING LEGAL CERTAINTY: EMPIRICAL STUDIES ON THE
GLOBALIZATION OF LAW 325, 341 (Volkmar Gessner & Ali Cem Budak eds., 1998)
(concluding that globalization “implies a spatial reorganization of social life in which
political and legal space is no longer solely coterminous with national territorial
space”). See also EDUARDO SAXE FERNÁNDEZ, LA NUEVA OLIGARQUÍA
LATINOAMERICANA: IDEALOGÍA Y DEMOCRACIA (1999) (considering globalization as
an ideology that supports hegemonic domination by the United States); JOSEPH E.
STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 247 (2002) (urging the reformation
of international financial institutions and a change of the “mindset around
globalization” to make it “fairer, and more effective in raising living standards,
especially of the poor”).
20 See JAMES T. MCHUGH, COMPARATIVE CONSTITUTIONAL TRADITIONS 216
(2002) (indicating that “[t]he significance of constitutionalism has been magnified by
the increasing interdependence and interaction of the world community. . . .
International law is the context of this process; constitutional law is its political
subtext”). See also Andrew Harding & Esin Örücü, Preface to COMPARATIVE LAW IN
THE 21ST CENTURY ix (Andrew Harding & Esin Örücü eds., 2002) (indicating that
THE
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 6
22-JAN-04
15:28
264 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
renewed interest in comparative constitutional law is the result of two
phenomena. First, integration requires coordinating constitutional norms
in order to join in a community. For example, in Europe, some member
countries of the European Union needed to amend their respective constitutions to incorporate Amsterdam Treaty provisions into their domestic legal orders.21 In Latin America, constitutions are stalling further
integration because they usually do not “resolve the legal problems of
participating in a community-type economic integration.”22 Second and
more importantly, human rights and constitutional democracy are becoming universal standards creating a set of transnational constitutional values.23 Despite the rising interest in comparative constitutional law, doubts
“the comparative approach has a renewed legitimacy” for constitutional law); Vicki C.
Jackson & Mark V. Tushnet, Introduction to DEFINING THE FIELD OF COMPARATIVE
CONSTITUTIONAL LAW xix (Vicki C. Jackson & Mark V. Tushnet eds., 2002) (stating
that “explicit or implicit in virtually all of these chapters is the theme that
globalization as a phenomenon requires comparative constitutional study”).
21 See Armando Toledano Laredo, The Effects of Integration on the Constitutional
Law of Member States of the European Union, in EUROPEAN INTEGRATION AND
CONSTITUTIONAL LAW 5, 10-11 (2001) (explaining that Austria, France, and Ireland
had to undertake constitutional amendments to comply with the Amsterdam Treaty).
22 Allan R. Brewer-Carı́as, Constitutional Implications of Regional Economic
Integration, in COMPARATIVE LAW FACING THE 21ST CENTURY 682 (John W. Bridge
ed., 2001). The lack of uniformity among the constitutions of the MERCOSUR
member states on the status of international treaties in relation to domestic laws is
also further hindering integration. See generally Roberto Ruiz Dı́az Labrano, La
Integración y Las Constituciones Nacionales De Los Estados Parte Del MERCOSUR,
in ANUARIO DE DERECHO CONSTITUCIONAL LATINOAMERICANO (Konrad et al. eds.,
1999).
23 See Lawrence M. Friedman, Some Thoughts on the Rule of Law, Legal Culture,
and Modernity in Comparative Perspective, in TOWARD COMPARATIVE LAW IN THE
21ST CENTURY 1075, 1088 (The Institute of Comparative Law in Japan ed., 1998)
(commenting that “the rule of law, and concepts of human rights, may be making the
transition from culture to technology—a technology of modernity. . . . [t]hey seem to
be shifting from a set of norms that grew out of one setting, to a set of norms that
spans the entire globe.”). See also Juliane Kokott, From Reception and
Transplantation to Convergence of Constitutional Models in the Age of
Globalization—with Special Reference to the German Basic Law, in
CONSTITUTIONALISM, UNIVERSALISM AND DEMOCRACY—A COMPARATIVE
ANALYSIS 71, 74 (Christian Starck ed., 1999) (stating that the “[m]odifications of the
principle of sovereignty now exclude the view that constitutional orders are merely
internal matters. Rather, international law prescribes the protection of human rights,
and according to an increasingly held view, even democratic governance.”); Rainer
Grote, Rechtskreise im öffentlichen Recht, 126 ARCHIV DES ÖFFENTLICHEN RECHTS
10, 20 (2001) (mentioning that the model of Verfassungsstaatlichkeit, characterized by
separation of powers, protection of fundamental rights, and constitutional review, has
found general recognition.). Grote also speaks of a “dritte grobe” “Rezeptionswelle,”
id. at 20. See also THE INTERNATIONAL COMMISSION ON INTERVENTION AND STATE
SOVEREIGNTY, THE RESPONSIBILITY TO PROTECT (2001), available at http://
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 7
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
265
about its method still exist.24 A reading of Constitutional Studies may contribute to thinking about the limits and possibilities of comparative constitutional law. Indeed, Constitutional Studies is both an attempt to
coordinate constitutional law to promote integration and an attempt to
develop a transnational constitutional discourse. Arosemena’s methodological conception allowed him to see that the first step for a lasting
integration in Latin America was to strive toward democratic standards.
Further, Arosemena aimed for integration through the people as if they
were members of a community, but without a supranational government.
This showed an insight about what the obstacles hindering Latin American integration then were, and about what the desirable goal of any integration should be.25 To show how Arosemena gained his insight may be
fruitful for comparative constitutional law today.26
www.dfait-maeci.gc.ca/iciss-ciise/report2-en.asp (concluding that when a state is
unwilling or unable to protect its people from harm, “the principle of nonintervention yields to the international responsibility to protect”).
24 See,
e.g., Hartmut Krüger, Eigenart, Methode und Funktion der
Rechtsvergleichung im Öffentlichen Recht, in STAATSPHILOSOPHY UND
RECHTSPOLITIK 1393 (Burkhardt Ziemske, et al. eds., 1997) (commenting that
contrary to public law, the comparison in private law “can look back to an old
methodological tradition.”); FRANCOIS VENTER, CONSTITUTIONAL COMPARISON:
JAPAN, GERMANY, CANADA, AND SOUTH AFRICA AS CONSTITUTIONAL STATES 19
(2000) (acknowledging that “stimulating work has been done in the field of
constitutional comparison. . . . It would, however, be a gross exaggeration to say that
comparative constitutional law has developed into a comprehensive and systematized
field.”). See generally Peter Thomas Muchlinski, Globalisation and Legal Research, 37
THE INT’L LAW. 221, 239-240 (2003) (stating that the comparative law method “is at a
politically significant cross-roads: either it takes a more academically credible
route . . . . [o]r, it continues to be based on a search for crude a-historical,
and culturally suspect, similarities of meaning and purpose in legal phenomena,
which will deliver the illusion of an emergent global law serving as the legal
expression of globalization.”); GEORGIOS TRANTAS, DIE ANWENDUNG DER
RECHTSVERGLEICHUNG BEI DER UNTERSUCHUNG DES ÖFFENTLICHEN RECHTS 63-91
(1998).
25 A twentieth century jurist analyzing Latin America would rediscover later that
to develop a Pan-American consciousness, each society must first achieve a
democratic order. See GALLARDO, supra note 6, at 24. Cf. JOHN PINDER, THE
EUROPEAN UNION: A VERY SHORT INTRODUCTION 158 (2001) (concluding that “[t]he
necessary sharing of sovereignty is possible only for pluralist democracies that are
willing to accept a common rule of law, and have the capacity to develop legislative
institutions to enact it and a system of government to implement policies within it.”).
26 Cf. WILLIAM TWINING, GLOBALISATION AND LEGAL THEORY 184-193 (2001)
(urging a rethinking of comparative law, and particularly its method, from a global
point of view); Roy N. Freed, A Task for Comparative Law Teachers in the Age of
Globalization: To Harmonize Laws through International Cross Fertilization, in
TOWARD COMPARATIVE LAW IN THE 21ST CENTURY 1057-58 (The Institute of
Comparative Law in Japan ed., 1998) (indicating that “it is particularly timely, at the
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 8
22-JAN-04
15:28
266 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
Arosemena’s project emerged from the integrationist tradition in Latin
America.27 Elusive since the independence of the Latin American countries, the integrationist ideal had two main motivations: to organize governments that ensured individual liberties, and to balance the
international arena vis-à-vis the Holy Alliance, Spain, and England.28
Simón Bolı́var’s vision typifies this integrationist tradition. He wanted to
organize South America into one of the greatest nations of the world,
measured not by its extension or wealth, but by its liberty.29 Determined
to fulfill his vision, in 1824 Bolı́var invited the governments of Colombia,
Mexico, Rı́o de la Plata, Chile, and Guatemala to attend the Congreso
Anfictiónico de Panamá for creating a permanent supranational institution.30 This Congreso Anfictiónico took place in 1826 with a disappointing
present stage of globalization, for comparative law teachers to modernize their
approach and become comfortable being judgmental and actively favoring specific
legal rules that should be preferable economically or even socially”).
27 See, e.g., Blas Piñar López, Cronologı́a de la unidad hispanoamericana, Mı́stica y
Polı́tica de Hispanidad, at http://usuarios.lycos.es/hispanidad/blashi12.htm (Apr. 19,
1961) (mentioning among the early advocates of the idea of a Hispano-American
unity, Francisco de Miranda, who around 1785-1790 wanted to organize an American
Empire). See generally LUIS CASTRO LEIVA, LA GRAN COLOMBIA. UNA ILUSIÓN
ILUSTRADA (1984) (describing the disintegration of La Gran Colombia into three
states, Colombia, Ecuador and Venezuela, and discussing the survival of the idea of
the union as a principle actor in international relations among the nations liberated by
Simón Bolı́var).
28 Based on the Holy Alliance Treaty of 1815, the alliance of Austria, Prussia, and
Russia “was essentially an attempt by the conservative rulers to preserve the social
order,” after the fall of Imperial France. Holy Alliance, in COLUMBIA ENCYCLOPEDIA
(6th ed. 2003), available at http://www.encyclopedia.com/html/H/HolyA1lli.asp (2003).
See also 1 CELESTINO ANDRÉS ARAÚZ, PANAMA Y SUS RELACIONES
INTERNACIONALES 28 (1994) (mentioning the geopolitical factors motivating the
initiative of the Congreso Anfictiónico de Panamá); MANFRED KOSSOK, IM
SCHATTEN DER HEILIGEN ALLIANZ: DEUTSCHLAND UND LATEINAMERIKA, 18151830: ZUR POLITIK
DER
DEUTSCHEN STAATEN GEGENÜBER
DER
UNABHÄNGIGKEITSBEWEGUNG MITTEL- UND SÜDAMERIKAS 29, 103-04 (1964)
(stating that the Heiligen Allianz reacted contemptuously to “the political/ideological
impact of the South American independence movement,” and that Russia, Austria,
and Prussia supported the 1822 Manifest of Fernando VII, asking all powers not to
grant recognition of the American colonies); Simón Bolı́var, Convocatoria del
Congreso de Panamá, in INTRODUCCIÓN A SIMÓN BOLÍVAR 190 (Miguel Acosta
Saignes ed., 1983) (explaining the advantages of the Congress of Panama for the
South American countries in their relations with “the universe,” understood as the
European political world).
29 See Simón Bolı́var, Carta de Jamaica (Sept. 6, 1815), in INTRODUCCIÓN A SIMÓN
BOLÍVAR, supra note 28, at 72.
30 See Simón Bolı́var, supra note 28, at 189 (proposing the creation of a “sublime
authority” responsible for ensuring the uniformity of the politics of the different
governments).
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 9
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
267
outcome.31 It adopted a treaty for a perpetual confederation, but without
a supranational authority; the treaty stressed that the confederation
would not limit in any way the sovereignty of the parties.32 Arosemena
would learn from this failed Bolivarian experience. He realized that integration was not feasible without minimal homogeneity among the Latin
American societies. The approach to be used in reaching the goal of integration was as important as its outcome. Integration should not occur
from the top-down through governmental institutions, but from the bottom-up through the people. To succeed, integration must be radically
democratic. Arosemena believed that societies evolve from primitive
forms to higher forms of civilizations, considering how well they assure
individual liberty. For Arosemena, the highest expression of political
organization for ensuring individual liberty was the constitutional democratic republic. Thus, organized constitutional democratic governments in
each Latin American country would be the desideratum. Yet, the process
toward constitutional democracies cannot be forced. Arosemena did not
use prescriptions for imposing a model in each country; he evaluated the
degree of political organization of each analyzed Latin American country
and suggested changes to encourage progression toward a constitutional
democracy. Contrasting institutional arrangements of a given country,
Arosemena pointed out their similarities and differences from the democratic ideal. He did not discard the deviations from the ideal, but
explained them historically, and then suggested feasible reforms to
strengthen a country’s organization toward a constitutional democracy.33
It is for this methodological approach, an important feature of the stan31 CARLOS PEREYRA, BREVE HISTORIA DE AMÉRICA 521-22 (2d ed. 1946)
(quoting Simón Bolı́var and concluding that the Congress was a failure). Congresses
for Latin American unity have continued until today, but more as an opportunity for
reflecting on integration. See Cuauhtémoc Amezcua Dromundo, Se Celebró el Cuarto
Congreso Anfictiónico Bolivariano de América Latina y el Caribe, 10 UNIDAD
REGIONAL (Jan. – Apr. 2002), at http://www.aunamexico.org/publicaciones/boletin/
bol10/bol10ene02-amezcua.htm (reporting on the IV Congreso Anfictiónico
Bolivariano in Buenos Aires, Argentina in 2002 and that the next Congress will take
place in Mexico in 2003). For details about the goals and agenda of the V Congreso
planned for November, 2003, see Alonso Aguilar Monteverde, V Congreso
Anfictiónico de América Latina, 13 UNIDAD REGIONAL (Jan.-Apr. 2003), at http://
www.aunamexico.org/index.htm.
32 See ARAÚZ, supra note 28, at 27-30 (describing the Congreso Anfictiónico de
Panamá).
33 Cf. PETER DE CRUZ, COMPARATIVE LAW IN A CHANGING WORLD 10 (2d ed.
1999) (stating that “[l]egal history is the vital precondition to the critical evaluation of
the law and an understanding of the operation of legal concepts, which is a primary
aim of comparative law.”); Stig Strömholm, Comparative Legal Science—Risks and
Possibilities, in LAW UNDER EXOGENOUS INFLUENCES 5, 13 (Markku Suksi ed., 1994)
(emphasizing that “history . . . is one of the most reliable tools of comparatists”).
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 10
22-JAN-04
15:28
268 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
dard method of comparative law today,34 that Arosemena’s Constitutional Studies is still praiseworthy.
This article shows that Arosemena’s main contribution to comparative
constitutional law lies in his method. The second part of the article gives
basic information about the arrangement and purposes of Constitutional
Studies, and reconstructs Arosemena’s constitutional conception. The
third part discusses the intellectual influences on Constitutional Studies,
showing the sources from which Arosemena developed his comparative
method. The fourth part contextualizes Constitutional Studies, analyzing
how nineteenth and twentieth century scholars received it, and presents
some suggestions encouraging further research to explain why Constitutional Studies was forgotten. The fifth and last part of the study presents
the conclusion arguing what significance Constitutional Studies should
have for the Latin American legal tradition. Although Latin American
and European scholars have recognized Arosemena as one of the most
important jurists of all times,35 they have not examined Constitutional
Studies, Arosemena’s most important work.36 This study aims to fill this
34
See DE CRUZ, supra note 33, at 7 (mentioning “studies which compare the
several stages of various legal systems” as one of the types of studies in comparative
law today). But see JOHN HENRY MERRYMAN, THE LONELINESS OF THE
COMPARATIVE LAWYER AND OTHER ESSAYS IN FOREIGN AND COMPARATIVE LAW
485-86 (1999) (acknowledging that the tradition of comparative law has been rulecentered). For Merryman, the emphasis on primary rules is not a theoretical necessity,
but rather is explainable by the history of comparative law, which “has been
dominated by European legal theory.” Id. at 485. He proposed focusing on “legal
culture, secondary legal rules, legal institutions, legal actors, and legal processes as the
matter of comparison, and excludes primary legal rules.” Id. at 486.
35 See Paul, supra note 2, at 40-1.
36 In addition to Constitutional Studies, two of Arosemena’s works stand out for
their breadth of analysis and subject matter: APUNTAMIENTOS PARA LA
INTRODUCCIÓN A LAS CIENCIAS MORALES Y POLÍTICAS (New York, Imprenta Juan
de la Granja 1840) and THE INSTITUTION OF MARRIAGE IN THE UNITED KINDGDOM:
BEING LAW, FACTS, SUGGESTIONS AND REMARKABLE DIVORCE CASES (London,
Effignham, Wilson-Royal Exchange 1879) (writing under the pseudonym
Philanthropus J.A., LL.D). Arosemena’s works also include newspaper articles, laws
and constitutional projects, legal opinions, essays, articles, letters, and speeches.
Arosemena scholars agree that Constitutional Studies is his most important work. See,
e.g., JOSÉ DOLORES MOSCOTE & ENRIQUE J. ARCE, LA VIDA EJEMPLAR DE JUSTO
AROSEMENA 359-60, 365-66 (1956) (stating that Constitutional Studies is the most
important of Arosemena’s works and that he is one of the first in the Spanishspeaking world to use the comparative method in the analysis of constitutional
institutions); OCTAVIO MÉNDEZ PEREIRA, JUSTO AROSEMENA 345-46 (Panama,
Editorial Universitaria 1970) (1919) (commenting that Constitutional Studies is a
synopsis of Arosemena’s previous writings).
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 11
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
269
gap in the history of legal thought by delivering a systematic analysis of
Constitutional Studies.37
II. BASICS ABOUT CONSTITUTIONAL STUDIES
Constitutional Studies had three editions. Except for the change in the
title and the inclusion of more Latin American countries, there were no
fundamental changes from the first edition of 1870 to the last edition of
1888. The two-volume edition of 1870, under the title Constituciones
Polı́ticas de la América Meriodinal, Reunidas y Comentadas, analyzes the
constitutions of ten Latin American countries: Brazil, Chile, Argentina,
Uruguay, Paraguay, Bolivia, Peru, Ecuador, Colombia, and Venezuela.38
In the 1878 edition, the title was changed to Constitutional Studies of the
Governments of Latin America, the constitutions of Mexico, Guatemala,
El Salvador, Nicaragua, Costa Rica, and Haiti were added, and the
appendix was updated.39 The 1888 edition was slightly updated.40 The following sections of this article give basic information about Constitutional
Studies. The first section will describe Constitutional Studies’ structure
and purpose. The second will discuss Arosemena’s method and utopian
core. The third will reconstruct Arosemena’s constitutional conception.
A. Arrangement and Purpose
Arosemena pondered which of the Latin American countries to
include in his study on the basis of geopolitics. Thinking the United States
would seize Mexico and Central America as it had Texas, he excluded
them from the first edition.41 Also, Arosemena pondered the order in
37
Cf. Annelise Riles, Introduction: The Projects of Comparison, in RETHINKING
MASTERS OF COMPARATIVE LAW 5 (Annelise Riles ed., 2001) (“Precisely
because the modernism of comparative law has a future, not simply a past, so to
speak, the re-evaluation of this history has special purposes and effects.”).
38 JUSTO
AROSEMENA, CONSTITUCIONES POLÍTICAS DE LA AMÉRICA
MERIODINAL, REUNIDAS Y COMENTADAS (Imprenta A. Lemale Ainé, Havre 1870).
Volume I is comprised of 442 pages and Volume II is comprised of 429 pages. Id.
39 JUSTO AROSEMENA, ESTUDIOS CONSTITUCIONALES SOBRE LOS GOBIERNOS DE
AMÉRICA LATINA (2d ed., Librerı́a Española i Américana de E. Denne, Paris, 1878)
[hereinafter ESTUDIOS CONSTITUCIONALES 2d Edition]. In this edition, Volume I is
comprised of 583 pages and Volume II is comprised of 524 pages. Id.
40 JUSTO AROSEMENA, ESTUDIOS CONSTITUCIONALES SOBRE LOS GOBIERNOS DE
AMÉRICA LATINA (3d ed., A. Roger y F. Chernoviz, Paris 1888). In this edition,
Volume I is comprised of 583 pages and Volume II is comprised of 570 pages. Id.
41 Arosemena’s selection criterion is justifiable given that his goal was to further
Latin American integration. If Mexico had become part of the United States, it would
have been outside the political sphere of a Latin American community. See ESTUDIOS
CONSTITUCIONALES 2d Edition, supra note 39, at foreword (“At the beginning I
thought that probably Mexico and Central America would fall within the assimilating
whirlpool of the great Republic of the North, thus it was not important for the
brothers of the South to study those countries as branches of the same family.”). For
THE
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 12
22-JAN-04
15:28
270 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
which he would analyze the countries; his criterion combined geography
and what he called “political chronology” or “the natural evolution of the
systems according to the social and political development of the societies.”42 Thus, the book begins with the Brazilian monarchy, continues
with the Chilean oligarchy, and follows with the Colombian and Venezuelan federations. The book places Central America and Haiti at the end
because Central America had previously formed an existent federation,
and Haiti had the potential of forming a Franco-Hispanic Alliance with
the Dominican Republic. In Arosemena’s view, this potential alliance
represents the highest expression of political evolution, the bringing
together of two culturally distinct societies.43
Arosemena also deliberately organizes his account of each country. He
begins by reproducing the text of each country’s constitution, followed by
a section entitled Antecedents, which gives a survey of the country’s constitutional history since its independence. He continues with a general
assessment of the country’s constitution, entitled General Observations;
and ends with specific proposals for constitutional reform, under the title
Particular Observations. The exposition is consistent with this arrangement, except in the following cases: for Colombia and Mexico,
Arosemena includes constitutional amendments; for Ecuador, he includes
a digression entitled “Chapter about the former Gran Colombia;”44 for
Central America, he reproduces the constitutional texts of Guatemala, El
Salvador, Nicaragua, Honduras, and Costa Rica, yet, he addresses their
constitutional histories and commentaries together under the title of Central America. Arosemena stresses that those countries should develop
an analysis of the United States expansionism see generally EFRÉN RIVERA RAMOS,
THE LEGAL CONSTRUCTION OF IDENTITY: THE JUDICIAL AND SOCIAL LEGACY OF
AMERICAN COLONIALISM IN PUERTO RICO (2001).
42 CONSTITUTIONAL STUDIES, supra note 1, at para. 41.
43 One might ask why Arosemena did not consider both Mexico and Bolivia as two
societies, given the large indigenous populations of these countries. The reason is that
Arosemena considered the indigenous question in those countries as an issue of
internal politics, while the possible integration of Haiti and the Dominican Republic
was a question of foreign policy between two states. Cf., CONSTITUTIONAL STUDIES,
supra note 1, at paras. 673-85 (analyzing the situation of the Indians, and insisting that
the indigenous peoples must be recognized as full citizens). Arosemena denounced
that in Peru, Bolivia, and Ecuador “there [were] two distinct people: the pure Indian
and the rest of the races, pure or mixed. For the white people, the mixed and the
mulatto, [there were] the Constitution and the laws; for the Indian, the work under
the whim and the benefit of the other people.” Id. at para. 685.
44 After their independence from Spain, Colombia, Ecuador, Venezuela, and
Panama formed La Gran Colombia, which existed until 1830. See 2 MANUEL
ANTONIO POMBO & JOSÉ JOAQUÍN GUERRA, CONSTITUCIONES DE COLOMBIA 669868 (2d ed. 1911) (describing the rise and fall of La Gran Colombia). See also JOSÉ
MARÍA SAMPER, DERECHO PÚBLICO INTERNO DE COLOMBIA 99-132 (1982)
(describing the same).
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 13
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
271
toward a federation again, as they had in the early 1800s.45 Finally, for
Haiti and the Dominican Republic, Arosemena only reproduces the constitutional text of Haiti and addresses together the two countries’ constitutional histories and commentaries. Arosemena explains that after a
rebellion in the Dominican Republic succeeded in March 1878, a Constitutional Convention was organized. He did not know whether that Convention would reinstate the Constitution of 1875 or proclaim a new one.
If he had obtained it on time, he said that he would have added the
Dominican constitutional text to the appendix.46
In the analysis of each country, Arosemena uses a notion of liberal
constitutional democracy as a point of departure. He understood constitutional democracy as an institutional array—such as separation of powers and regular elections—adequate to ensure individual rights and to
check the excessive concentration of power.47 A civilized government
harmonizes divergent social interests, efficiently fostering individual
rights. The degree of civilization is measured normatively by the closeness
of institutions to a liberal constitutional democracy, and sociologically by
compliance with the laws. Using those standards, Arosemena asked, then,
in what stage of civilization the Latin American nations were. The section
titled General and Particular Observations deals with the normative level,
the section titled Antecedents deals with the factual level. On a normative
level, Arosemena believed that certain institutions intrinsically favor
authoritarianism and suggests avoiding those institutions. For example, a
one-chamber legislature encourages the tyranny of the legislature, propitiating political instability, while bicameralism encourages moderation,
45 See CONSTITUTIONAL STUDIES, supra note 1, at para. 1556. Arosemena states:
Although today divided into five independent states, the territory that includes
Guatemala, El Salvador, Honduras, Nicaragua and Costa-Rica, formed one
colony during the Spanish Empire . . . constituted one nation at its independence
from Spain . . . and would form one nation again . . . . Thus, we will analyze this
interesting region together.
Id. From 1821 to 1839, Guatemala, El Salvador, Honduras, Nicaragua and Costa Rica
formed the Federal Republic of Central America. See Joardana Dym, City, State and
Nation in Central America, 1810-1839: From Pueblos to Pueblo, Creating the National
State, at http://www.bilkent.edu.tr/bilkent/academic/crts/paper/jordana.htm (Apr. 16,
2001) (analyzing the Central American Federation of 1821-1839). See generally
RICARDO GALLARDO, LAS CONSTITUCIONES DE LA REPUBLICA FEDERAL DE CENTROAMERICA (1958).
46 See CONSTITUTIONAL STUDIES, supra note 1, at para. 1688. For a brief synopsis
of the history of the Dominican Republic see JAN KNIPPERS BLACK, THE DOMINICAN
REPUBLIC: POLITICS AND DEVELOPMENT IN AN UNSOVEREIGN STATE 13-28 (1986);
MICHAEL J. KRYZANEK & HOWARD J. WIARDA, THE POLITICS OF EXTERNAL
INFLUENCE IN THE DOMINICAN REPUBLIC 21-35 (1988); Instituto de Derecho Público
Comparado, Universidad Carlos III de Madrid, Constitución de la República
Dominicana, at http://www.uc3m.es/ uc3m/inst/MGP/consdom.htm (last visited Oct.
16, 2003).
47 See CONSTITUTIONAL STUDIES, supra note 1, at paras. 17, 1590.
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 14
22-JAN-04
15:28
272 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
propitiating political order. The lower chamber echoes new passions and
interests; the higher chamber ensures a counterbalance against them.48
Also, concentrating the executive power in one individual might cause
conflicts with the legislature, especially in Latin America with its strong
tradition of caudillismo coupled with the popular election of the President. For that reason, Arosemena suggests a plural executive that shares
responsibility with the legislature.49 On a factual level, Arosemena
explains that a society could be in three legal-moral conditions according
to the degree of compliance with its laws. One, the members of the society do not observe the laws because of a lack of public opinion to uphold
them. Two, the members of the society usually observe the laws, except
when they affect particular interests adversely. In that case, some members infringe or deceitfully interpret the laws to favor those particular
interests. Three, the members of the society observe the laws, but with
personal favoritism.50 According to these classifications, Britain and the
United States are examples of the highest form of civilizations.51 With
some exceptions (Brazil, Chile, and Argentina would be considered relatively advanced), Latin American countries would be in the second
group.52
Arosemena offers a historical explanation for this condition of the
Latin American countries. Sharing similar backgrounds marked by conquest and colonization, mainly by the Spaniards and the Portuguese,53
Latin American colonial societies became multi-ethnic, class-conscious,
and organized around racial notions. According to Arosemena’s analysis,
it could not have been otherwise because the colonizing nations, Spain
and Portugal, had not yet undergone modernization as, for example,
Great Britain had.54 The colonies had some features that favored democracy such as few aristocratic members and a large entrepreneurial population of the estado llano.55 Nevertheless, wars of independence allowed the
growth of military caudillismo, which undermined the formation of a
48
See id. at paras. 95, 203-04, 389, 558-77, 895-96, 1504-05.
See id. at paras. 593, 735, 1072-82.
50 See id. at para. 1708.
51 See id. at para. 17. In Arosemena’s time, the British and American experiences
represented the desirable level of political organization. For Arosemena, the British
and American experiences were examples of the most desirable democratic
governments, particularly because Great Britain became a constitutional monarchy,
in which the monarchy had no authority and all the power was constitutionally vested
in the Parliament. Similarly, the United States of America, after abolishing slavery,
was an example of a successful democratic government. See id., at paras. 1697, 170406.
52 See id. at paras. 1690, 1698, 1705-06, 1708-10.
53 See id. at paras. 1689.
54 See id. at para. 1445.
55 See id. at paras. 18-31. Estado llano literally translates as plain status or plain
condition.
49
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 15
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
273
democratic culture respectful of the rule of law.56 Authoritarianism and
anarchy would become Hispano-American political ills.57 In addition,
particular regional characteristics explain the nuances of legal-moral conditions among the governments of Latin America.58 For instance, in Brazil, the administrative colonial model and its non-violent independence
resulted in a peculiarly legitimate and successful monarchy, while, in
Mexico, the lack of tradition of the monarchy resulted in its failure.59 In
Argentina, the strong autonomous spirit and nomadic condition of the
indigenous population influenced the colonization of the fluvial regions.60
Bolivia, with a large indigenous population, suffered more militarism
than other countries.61 Briefly, the constitutional experiments seeking to
organize these societies were caught between a strong social conservatism
and the need for hastening modernization.62 An example of this difficulty
was the way in which the new societies maintained dominion and
exploitation over ethnic groups through class-based and caste-like hierarchies. In general, the native people were denied civil rights,63 and especially in Bolivia, the oppression of the native people was extreme.64
With this moral-legal condition of the Latin American societies,
Arosemena justified the educational purpose of Constitutional Studies.
He wanted to foster common institutional knowledge among the Latin
American countries so they could coordinate constitutional policies
toward a liberal democratic model. He believed that a common knowledge could further a non-governmental union to overcome “the error and
the injustice” of traditional socio-political values that slowed advancing
democracy.65 In Arosemena’s words, “the aspiration of the honest men
[and women] of Hispano-América” has always been to strive toward
higher forms of political organization “for the people.”66 This should be
the aspiration of political leaders as well as of the publicists.
B. Theory and Utopia
Arosemena distinguishes between the art of politics and the science of
politics. The art of politics prescribes the rules to organize society and
56 See id. at para. 35. The dominance since independence of this military leadership
was one factor that lead to the general instability of the Latin American institutions.
See id. at paras. 1695-96.
57 See id. at para. 1446.
58 See id. at paras. 116, 152-54.
59 See id. at paras. 47-57, 1426-27.
60 See id. at paras. 256-60.
61 See id. at paras. 525-33.
62 See id. at para. 1427. See also generally id. at paras. 1420-35.
63 See id. at paras. 672-75, 681-82, 684-85, 1292-94, 1629.
64 See id. at para. 526.
65 Id. at para. 40.
66 Id. at para. 39 (emphasis added).
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 16
22-JAN-04
15:28
274 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
government; the science of politics describes the laws that influence them.
The art of politics is the responsibility of the political leader, while the
science of politics is the responsibility of the publicist. Through policy
prescriptions, the political leader removes obstacles, such as the lack of
education, to allow the laws influencing society and government to follow
their course. Through observation, the publicist identifies the laws about
society and government that shape the fate of a given nation, and draws
from them workable policy recommendations for the political leader.67
The efficacy of the policy prescriptions proposed by the political leader
depends on understanding the laws influencing society, while the efficacy
of the descriptions set forth by the publicist depends on using a fitting
method.
To develop effective policy recommendations for the political leader,
the publicist must use an inductive method. Arosemena refers to a methodological tradition started with Aristotle’s Politeia, in which Aristotle
compiled constitutions to deduce the general principles of the various
forms of governments. According to this method, Arosemena distinguishes between pre-scientific publicists, such as the socialists from Plato
to Fourier; scientific publicists with partial contributions, such as Aristotle, St. Thomas Aquinas, Bodin, Hobbes, Locke, and Montesquieu; and
the scientific publicists, such as Comte, Guizot, Stuart Mill, Laboulaye,
Tocqueville, and Hildreth.68 Arosemena praises most the works by Tocqueville, author of Democracy in America, and by Hildreth, author of
Theory of Politics. He considers that in these works “without aiming to
support or to defend preconceived opinions about the origin of the governments or about the superiority of one form over another, they have
exposed with commendable patience the facts related to the nature and
effects of political institutions.”69
In the spirit of this tradition, in Constitutional Studies Arosemena seeks
to determine the particulars of the Latin American societies in relation to
a model of constitutional democracy. In his analysis, he assumes as a valid
frame of reference Tocqueville’s and Hildreth’s findings about the nature
of governments and society. For example, Arosemena supposes the origin
of the government as empirical and not founded in a social contract. The
need for government is rooted in basic human dispositions: domination,
obedience, and liberty.70 Social evolution grounded in these basic human
dispositions brought differences in wealth as well as militarism and religion. Together with ethnic, geographic, and climate factors, these occur67 According to Arosemena, this was the role of Jean-Jacques Rousseau in his
work The Social Contract, of Thomas Hobbes in his work Leviathan, and of Niccoló
Machiavelli in his works The Prince. See id. at paras. 7, 13-14.
68 See id. at paras. 3, 11-12.
69 See id. at para. 4.
70 See id. at paras. 8, 1411.
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 17
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
275
rences determine the particular form that a government adopts.71 In
addition, for Arosemena the transition from one form of government to
another is controlled by the law of evolution.72 Thanks to this law, it is
possible to find analogies between the different forms of government
described as ideal types, but with many variations.73 The moderate monarchy is a good example of how evolution works; with the elimination of
the monarch, the Republic could emerge, but the essential nature of public power would still be the same, as if nothing had changed.74
As much as Arosemena used a natural science-like model for the analysis of Latin American legal orders, a utopian idea underpinned his
inquiry. At its core, Constitutional Studies reveals a utopian notion, the
universal society, and an archetypal form of government, the constitutional democracy. Arosemena believes that, according to the law of progressive evolution, in the future, nations will be organized in small cities
within a universal society linked through morality, the economy, culture,
science, and laws.75 In this universal society, individuals will enjoy freedom in every state solely because of their human condition. This is, however, the future condition of humanity. Now, while raw power still
prevails in international relations, it is necessary to organize as many
large regional nationalities among the states,76 and as many liberal democratic federal republics, as possible. According to Arosemena, this organization would provide the optimal conditions for protecting individual
freedom.77 If the liberty of the individual constitutes the purpose of civilization’s progress, then the political organization must work toward furthering that goal. Therefore, Arosemena supports organizations based on
71
See id. at paras. 9, 11.
See id. at paras. 7-9, 1412.
73 See id. at para. 1438.
74 See id. at paras. 1436-37, 1439. To be sure, Arosemena’s assumptions first
systematized the analysis of existing political institutions. If, in a particular society,
eliminating the monarchy would lead the society towards a dictatorship, this
development had to be explained. For instance, Arosemena discusses how the
monarchy and the aristocracy lost their influence in the new states after the states’
independence from Spain. Republican forms of government did not follow after this
loss of influence because the militaristic caudillo replaced them, slowing the
foundation of democratic republics and the ascendancy of the rule of law. See id. at
para. 35.
75 See id. at para. 1618. Cf. Felix Markham, Introduction to HENRI SAINT-SIMON,
SOCIAL ORGANIZATION, THE SCIENCE OF MAN AND OTHER WRITINGS xlii, xlv (Felix
Markham ed., Harpers , 1964) (1952) (commenting that “[a]t the dawn of the
nineteenth century, this vision of a new integral civilization was not so remote from
reality as it would later appear to be. The idea of nationality was still balanced by the
idea of the unity of a cosmopolitan Europe.”).
76 See CONSTITUTIONAL STUDIES, supra note 1, at para. 1618.
77 See id. at paras. 826, 829, 831, 840, 844.
72
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 18
22-JAN-04
15:28
276 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
what is known today as the subsidiarity principle.78 There are individual,
as well as municipal, state, federal, confederative, and universal, sovereignties. Yet, individual sovereignty, with its bundle of rights, is the essential sovereignty because the other sovereignties gain legitimacy by serving
it. For the same reason, Arosemena argues in favor of a constitutional
democracy as the model for which political leaders have to strive.
Arosemena wished to translate findings of the science of politics into
workable policy recommendations for the art of politics. Constitutional
Studies’ focus on constitutional law is explainable because for Arosemena
the normative expression of politics is constitutional law. He understood
constitutional law as a fulfillment of practicable justice aimed toward protecting individual rights. As a publicist, Arosemena assumed that the purpose of history is to increase individual liberty; thus, political leaders
should prescribe constitutional policies to promote it. For Arosemena,
constitutional democracy is the form of government that best assures
individual liberty. Consequently, seeking to encourage a basic homogeneity of the legal orders that strengthen constitutional democracy, he put
78
See George A. Bermann, Regulatory Cooperation Between the European
Commission and U.S. Administrative Agencies, 9 ADMN. L.J. AM. U. 933, 950 (1996)
(stating that the Maastricht Treaty “expresses a general E.C. law principle of
“subsidiarity,” meaning that the E.C. should not take legislative action within fields of
concurrent E.C. and Member State jurisdiction if action at the Member State level
could adequately accomplish the E.C.’s objectives.”); Timothy L. Fort, Corporate
Makahiki: The Governing Telos of Peace, 38 AM. BUS. L.J. 301, 328-29 (2001)
(remarking that “in natural law terms, subsidiarity is a principle usually stating that
problems ought to be solved at the smallest appropriate level. . . . This principle,
Jeffersonian as well as Catholic, leaves significant autonomy and responsibility in the
hands of particular communities.”); Franz Xaver Perrez, The Efficiency of
Cooperation: A functional Analysis of Sovereignty, 15 ARIZ. J. INT’L & COMP. L. 515,
579 (1998) (commenting that “[a]n example illustrating this relationship between
cooperation and interdependencies is the principle of subsidiarity. Subsidiarity is a
principle for determining at what level a regulation should be effected.”); Eric Stein,
International Integration and Democracy: No Love at First Sight, 95 AM. J. INT’L L.
489, 527 (2001) (stating that “[t]he “subsidiarity principle” was incorporated with a
view to confining Union action to instances where the member states cannot act
effectively.”). Joachim Jens Hesse and Johnson Nevil have indicated that in the
relationship between the European Union and the nation states:
[S]ubsidiarity is a principle intended to prevent excessive centralization of power,
and expresses the basic notion that the Community should decide only in areas in
which national governments could not regulate more effectively. In this sense, it
is meant to serve as a guiding principle for allocating responsibilities between the
two levels. By implication, it also holds that political decisions should be taken at
the closest possible level to those actually affected by them.
Joachim Jens Hesse & Johnson Nevil, The Agenda of Constitutional Change in
Europe: Adaptation, Transformation, and Internationalization, in CONSTITUTIONAL
POLICY AND CHANGE IN EUROPE 373, 390 (Joachim J. Hesse & Nevil Johnson eds.,
1995). See generally Denis J. Edwards, Fearing Federalism’s Failure: Subsidiarity in the
European Union, 44. AM. J. COMP. 537 (1996) (analyzing the subsidiarity principle).
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 19
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
277
forward a harmonization of constitutional principles.79 A brief description of those constitutional principles follows.
C. Imaginable Constitution
The constitutional principles set forth in Constitutional Studies are
those of a liberal constitutional republic.80 Arosemena’s constitutional
thought can be summarized by two principles: protection of individual
liberty and adherence to the separation of powers.81 A constitution must
provide for individuals as much freedom as they inherently deserve; and
must provide for the state as much control as it inherently requires. Thus,
fundamental rights should preferably not be regulated by the constitution
because they could be restricted by legislation.82 If fundamental rights are
regulated by the constitution, however, they should be defined in way
that would deter their curtailment by governmental acts.83 The discretion
of executive, legislative, and judicial authorities to interpret fundamental
rights should be minimal, according to Arosemena.84 He proposed, for
example, that the freedom of expression should not have any constitutional or statutory limitations. Therefore, no censorship should be
allowed against publications.85 Arosemena believed the press has the
ability to self-regulate.86 Moreover, injuries to the private honor caused
79
See CONSTITUTIONAL STUDIES, supra note 1, at para. 40.
In the country commentaries of Constitutional Studies Arosemena addresses all
the subject matter of constitutional law or “internal public law” as it was called at that
time: fundamental rights and guarantees, forms of governments, the principle of the
separation of powers, the organization of the legislature, executive and judicial
powers, the local government, the armed forces, judicial review and constitutional
reform. Compare with the use of the phrase “internal public law” in the work by the
Portuguese SILVESTRE PINHEIRO FERREIRA, CURSO DE DIREITO PÚBLICO INTERNO E
EXTERNO (1830), its French version, COURS DE DROIT PUBLIC INTERNE ET EXTERNE
(1830), and its Spanish translation, COMPENDIO DE DERECHO PÚBLICO INTERNO Y
EXTERNO (Bartolomé Herrera trans. 1840) (indicating that Pinheiro Ferreira
attempted to outline the principles of constitutional law—”princı́pios gerais do direito
constitucional”—in his book and contrasted internal public law (constitutional law)
with external public law (international law)).
81 See CONSTITUTIONAL STUDIES, supra note 1, at para. 1590. Accordingly,
Arosemena suggests that the chapters of a constitution should usually be divided into
the following parts: the rights and guarantees to the habitants of the territory,
citizenship or political rights, organization of the national public power, and
organization of the local public power. Id. at para. 668. The first and second chapters
should address individual rights, into which the public power should not infringe, and
the third and fourth chapters should address the governmental powers. See id. at para.
668.
82 See id. at paras. 106-07, 112-13, 196, 409.
83 See id. at paras. 200, 411.
84 See id. at paras. 335, 1450.
85 See id. at paras. 548, 560.
86 See id. at para. 551.
80
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 20
22-JAN-04
15:28
278 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
by slander and libel should not be persecuted as crimes, but their redress
should be left to custom and social practices.87 Similarly, other fundamental rights, such as the right to private property, should only have express
constitutional limitations. For instance, indemnity for expropriation
should always be previous, even in war.88 In addition, only the legislature
should be able to impose taxes.89 For their part, governmental institutions
need strict controls to avoid the abuse of power. Arosemena argues for a
strict separation of powers and he is wary about constitutional provisions
that make the president the supreme chief of the nation. In a republic, he
believes, state powers should have equal hierarchy.90 Likewise,
Arosemena believes that without judicial review the supremacy of the
constitution against the abuse of state powers is meaningless.91 Departing
from the American federal judicial review model, he suggests that jurisdiction for determining the legitimacy of constitutional actions should be
allowed without the need of the case and controversy requirement.92
Besides the liberal principles that a constitution should hold, the effectiveness of a constitution was a paramount concern for Arosemena. For a
constitution to be effective, it must be faithful to the history and the realities of a given country.93 Incongruity between a constitution and its context, including a country’s social realities and history, is a cause for
disruption in Latin American institutions.94 For instance, in Bolivia, the
prevalence of militarism offered a weak base for an effective constitutional democracy.95 In addition, in Mexico, a non-native monarchy
imposed by the French failed.96 Arosemena warns briefly against transplanting institutions from one country to another without regard to their
circumstances.97 More importantly for its effectiveness, the constitution
must become deep-rooted in the popular culture and elicit a sentiment of
loyalty from the citizens. The presence or absence of this sentiment
toward the constitution allows the distinction between “real” and “paper”
constitutions.98 In Latin America, constitutions are often “paper” constitutions because they are not followed. For instance, the Uruguayan constitutional text is well drafted, but it lacks effectiveness.99 Moreover, in
87
88
89
90
91
92
93
94
95
96
97
98
99
See
See
See
See
See
See
See
See
See
See
See
See
See
id.
id.
id.
id.
id.
id.
id.
id.
id.
id.
id.
id.
id.
at
at
at
at
at
at
at
at
at
at
at
at
at
paras. 325, 1212-20.
para. 1041.
para. 443.
paras. 79, 159, 340-41.
paras. 1065-68, 603-07.
paras. 606-07, 1066.
paras. 176, 423-433, 436-38, 1415, 1418.
paras. 528-793.
paras. 532, 534-36.
paras. 1422, 1426-27, 1429-32.
para. 304.
paras. 38, 1638, 1700.
paras. 319-20, 361, 370.
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 21
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
279
Bolivia and Ecuador the dictatorships are the real governments.100 Nevertheless, it is necessary to distinguish whether a given institution failed
because it was inherently flawed or because of the absence of political
will to comply with it.101 For Arosemena, the problem may not lie in the
institutions themselves, but in a lack of political morality, which is the
source upholding a constitution.102
Analyzing the state of the Latin American countries, Arosemena concludes that they did not yet have the conditions for an effective democratic government. Nonetheless, he advises putting democratic
constitutions in place to disseminate their doctrines in hopes of educating
bona fide citizens. Regardless of the degree of civilization of the Latin
American countries, it is through the education of citizens that the constitution will gradually become more effective.103 For that reason,
Arosemena believed that a constitution should be able to prepare a country for the future; it should create the conditions for bettering the circumstances in a given country.104
100
See id. at paras. 538-40, 800, 850, 854.
See id. at para. 346.
102 See id. at paras. 1441,1444, 1703-05, 1707.
103 See id. at para. 1592, 1603.
104 See id. at paras. 419-26, 433. Based on this criterion, Arosemena considered the
Paraguayan Constitution of 1870 too anchored in the present. See id. at paras. 432-33,
1449. Arosemena considered that the Paraguayan government was essentially
personal until 1870, first under José Gaspar de Francia, and later under Cárlos
Antonio López. Under the dictator Francia, Paraguay did not have a constitution.
Under the dictator López, a pretense of a constitution was adopted. López stayed in
power until his death in 1862. His son, Solano, assumed power and ruled until his
death in 1870, which was the result of a war against the neighboring countries,
Argentina, Brazil and Uruguay. After this war, a Constitutional Convention adopted
the Paraguayan Constitution of 1870. See id. at paras. 419-26. For a brief
constitutional historical account of Paraguay, see Justo José Prieto, El Sistema
Constitutional Paraguayo, in LOS SISTEMAS CONSTITUCIONALES IBEROAMERICANOS
665, 667-68 (D. Garcı́a Belaunde et al. eds., 1992) (commenting that the Paraguayan
Constitution of 1870 came into force after the 1865-1870 war between Paraguay and
the Triple Alliance of Argentina, Brazil and Uruguay, in which Paraguay was
destroyed. This Constitution, which is considered a summary of the liberal ideas at
that time, ended more than 70 years of autocratic rule in Paraguay.). According to this
criterion, the Mexican Constitution of 1857 was probably the most advanced of the
nineteenth century Latin American constitutions. For a historical account of the
Mexican Constitution of 1857 see CONSTITUTIONAL STUDIES, supra note 1, at paras.
1374-80. For a brief account of Mexico’s constitutional history see Jorge Carpizo &
Jorge Madrazo, El Sistema Constitutional Mexicano, in LOS SISTEMAS
CONSTITUCIONALES IBEROAMERICANOS, supra, at 562-64 (explaining that the
Mexican Constitution of 1857, which was an advanced and liberal constitution, was
the result of the last constitutional convention of the nineteenth century in Mexico.
Ignacio Comonfort, the President of the Republic, did not accept the new
Constitution and organized a coup d’état. Benito Juárez, President of the Supreme
101
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 22
22-JAN-04
15:28
280 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
Arosemena, supposing the mestizaje brought new characteristics to the
Latin American societies,105 was convinced that every “race” is able to
learn democracy.106 He argues for a reform of the public school system to
educate true citizens because the current system was educating to maintain social and political oligarchies. Moreover, the public school system
was leaving large parts of the population outside of the economic mainstream and thus was indirectly creating the environment for popular restlessness propitious for militarism.107 For Arosemena, equally important
as the goal of educating citizens for democracy is the way in which this
civic education takes place. Arosemena rejected the idea that well-intentioned tyrants can educate citizens for freedom; dictators who justified
their power by claiming that they would prepare the population for a
representative government had been, in fact, failures in educating the
people for self-government.108
In summary, the imaginable constitution in Constitutional Studies
embraces the principles of a liberal constitutional republic. In this regard,
Arosemena’s constitutional tenets are an example of the “influence of
political and economic liberalism”109 prevalent in nineteenth century
Latin America.110 Yet, Arosemena’s imaginable constitution is not only a
model for the institutional organization of a particular Latin American
country. This imaginable constitution is an ideal standard or tertium comparationis against which Arosemena analyzes particular institutions of the
Latin American countries. It is this method that distinguishes Arosemena
in the Latin American legal literature of the nineteenth century. To show
how Arosemena developed this method that advanced comparative constitutional law, it is necessary to explore Arosemena’s intellectual
influences.
III. INTELLECTUAL INFLUENCES
IN
CONSTITUTIONAL STUDIES
The purpose of this section is to explore the sources Arosemena used
in writing Constitutional Studies. He used general and specialized sources.
The antecedents rely on general sources such as reports, newspaper articles, and historical works, while the commentaries rely on specialized
Court of Justice, organized the resistance against the coup d’état and won the civil
war).
105 See CONSTITUTIONAL STUDIES, supra note 1, at paras. 802, 1286.
106 See id. at paras. 374, 414-15, 1652, 1654.
107 See id. at paras. 372, 530-31.
108 See id. at paras. 1586-91, 1686.
109 Robert J. Kolesar, North American Constitutionalism and Spanish America: “A
special lock ordered by catalogue, which arrived with the wrong instructions and no
keys”?, in AMERICAN CONSTITUTIONALISM ABROAD, SELECTED ESSAYS IN
COMPARATIVE CONSTITUTIONAL HISTORY 56 (George Athan Billias ed. 1990).
110 See generally JAIME JARAMILLO URIBE, EL PENSAMIENTO COLOMBIANO EN EL
SIGLO XIX (3d ed. 1982).
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 23
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
281
sources such as legal and political works. Arosemena deals with authors
in two ways: some are mentioned by name only and others are referred to
by naming a particular text they authored. Arosemena mentions only the
authors’ names to illustrate a point, for example, to show how an author
has influenced national politics or has fallen out of favor because of religious intolerance.111 Arosemena mentions authors with reference to a particular work to support an assertion, for example, to contend that the
degree of a people’s education should decide whether the representative’s election ought to be direct or indirect, or to argue for the advantages of two legislative houses over one.112
111 Arosemena mentions the following authors by name only: in the introduction,
Platon, Fourier, Ciceron, Santo Tomás de Aquino, Bodin, Augusto Comte, Locke,
and Montesquieu; in the discussion of Chile, Haeckel, Büchner, Strauss, Darwin,
Draper, Carpenter, Spencer, Bain, Lewes, Huxley, Fyndall, Renan, Littré, and Ribot;
in the discussion of Paraguay, Bentham; in the discussion of Bolivia, Leibnitz, M.
Turgot, M. Lally Tolendal, M. Boissy, D’Anglas, and Hamilton; in the discussion of
Columbia, Washington, Jefferson, Adams, and Franklin; and in the conclusion,
Bentham. CONSTITUTIONAL STUDIES, supra note 1.
112 Arosemena cites the following authors and their works: in the introduction,
Aristóteles, Politeia; Rousseau, The Social Contract; Hobbes, Leviathan; Machiavelli,
El Principe; John Stuart Mill, Considerations on the Representative Government;
Alexis de Tocqueville, Democracy in America; Richard Hildreth, Theory of Politics; in
the discussion of Brazil, Silvestre Pinheiro Ferreira, Observaciones á la Carta
Portuguesa i á la Constitución del Brasil; Reybaud, Bréasil; M. Block, Dictionnaire
géneral de la politique; in the discussion of Chile, Ramón Briseño, Memoria históricocritica del derecho público chileno; Carrasco Albano, Comentarios sobre la
constitucion polı́tica de 1833; José Victorino Lastarria, La constitucion polı́tica de la
república de Chile comentada; in the discussion of Argentina, Domingo F. Sarmiento,
Comentarios; A. Nefftzer, Cristianismo, Dictionnaire général de la politique; in the
discussion of Uruguay, Manuel Colmeiro, Derecho Constitucional de las Repúblicas
Hispano-Américanas; in the discussion of Paraguay, Santiago Arcos, La Plata, Étude
historique; Cerbeleon Pinzon, Juicio sobre la Constitucion de Rionegro; Joseph Story,
A familiar Exposition of the United States; and Manuel Pers, Derechos i deberes de los
jurados; in the discussion of Bolivia, Edouard Laboulaye, Estudios sobre la
Constitucion de los Estados Unido; James Kent, Comentarios; John Adams, Defensa
de la constitucion de los Estados Unidos; John Stuart Mill, El Gobierno
Representativo; M. D. Conway, Republican Superstitions; and Manuel Colmeiro; in
the discussion of Peru, Agustin De la Rosa Faro, Historia polı́tica del Perú; John
Stuart Mill; Laboulaye; and M. A. Beaure, Démocratie Contemporaine; in the
discussion of Ecuador, Jose Manuel Restrepo, Historia de Colombia; Almanaque de la
Academia del Ecuador; John Stuart Mill; Laboulaye; Colmeiro; and Baralt i Diaz,
Historia de Venezuela; in the discussion of Columbia, Felipe Pérez, Jeografia jeneral de
los Estados Unidos de Colombia; and Jose Manuel Restrepo, Historia de Colombia; in
the discussion of Venezuela, Baralt i Diaz, Informe de Comisión Reformadora de la
Constitución; and Julian Viso, Opúsculo Inserto en el Federalista de Caracas; in the
discussion of Mexico, Lucas Alamán, Historia de Méjico desde los primeros
movimientos que prepararon su Independencia en el año de 1808 hasta la época
presente; Michel Chevalier, Le Mexique ancien et moderne; Enciplopedia moderna;
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 24
22-JAN-04
15:28
282 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
Particular works undergird Arosemena’s conception. He names two
authors as the initiators of rigorous political sciences: Alexis de Tocqueville, author of Democracy in America, and Richard Hildreth, author
of Theory of Politics. These works can be considered fundamental models
for Constitutional Studies. Arosemena quotes three other authors extensively: John Stuart Mill, author of Considerations on Representative Government, Edouard Laboulaye, author of Studies about the Constitution of
the United States, and Manuel Colmeiro, author of Constitutional Law of
the Hispano-American Republics. These authors’ works are significant
influences on Constitutional Studies. The three subsections of this part of
the article will accordingly examine: fundamental models, Tocqueville
and Hildreth; significant influences, Mill, Laboulaye, and Colmeiro; and a
partial conclusion on Arosemena’s method.
A. Fundamental Models: Tocqueville and Hildreth
Arosemena does not quote directly from Tocqueville’s Democracy in
America, although the work was an essential influence on Constitutional
Studies.113 A reading of Democracy in America and Constitutional Studies
reveals that Arosemena borrowed the following ideas from Tocqueville:
the duty to adapt democracy to the particular circumstances of each society; the comparative inductive method; and a disinterested perspective.114
Mesa i Leompart, Compendio de la historia de América; Francisco de Paula de
Arrangoiz, Méjico desde 1808 hasta 1867; Juan de Dios Arias, Reseña histórica;
Beaure; Times de Londres, artı́culo publicado en 1875; and American Register de Parı́s
de 25 de marzo de 1876; in the discussion of Centroamerica, Miguel de Barra, La
América; and in the discussion of Haiti, Mesa i Leompart. Id.
113 Cf. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Henry Reeve trans.,
Vintage Books 1945). The first volume of this work was published in 1835 and the
second in 1840. It was an extraordinary success in Europe and in the United States,
and influenced the institutional shaping of Latin American constitutions. See Héctor
Fix-Zamudio, Algunos aspectos de la influencia de la constitución de los Estados
Unidos en la protección de los derechos humanos en América Latina, in
CONSTITUCIÓN Y DEMOCRACIA EN EL NUEVO MUNDO: UNA VISIÓN PANORÁMICA DE
LAS INSTITUCIONES POLÍTICAS EN EL CONTINENTE AMERICANO 131, 144, 157-58, 166
(Hector Fix-Zamudio et al. eds., 1988) (commenting on Tocqueville’s influence in
Latin America). For a detailed account of the writing of Democracy in America see
JAMES T. SCHLEIFER, THE MAKING OF TOCQUEVILLE’S DEMOCRACY IN AMERICA
(1980); DRESCHER SEYMOUR, TOCQUEVILLE AND ENGLAND 54 (1964). For
Tocqueville’s biography see ANDRÉ JARDIN, ALEXIS DE TOCQUEVILLE 1805-1859
(1984). For an analysis and interpretations of Democracy in America by John Stuart
Mill and James Bryce see generally J. P. MAYER, ALEXIS DE TOCQUEVILLE:
ANALYTIKER DES MASSENZEITALTERS 30 (3d ed. 1972). See generally JOHN C.
KORITANSKY, ALEXIS DE TOCQUEVILLE AND THE NEW SCIENCE OF POLITICS: AN
INTERPRETATION OF DEMOCRACY IN AMERICA (1986).
114 Cf. Carlos Restrepo Piedrahita, Constituyente y Constitucionalistas del Siglo
XIX. Estudio Preliminar in M. A. POMBO & J. J. GUERRA, CONSTITUCIONES DE
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 25
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
283
Arosemena constructed his comparative method partly on these ideas.
Endorsing Tocqueville’s prediction about the universal rise of democracy,
Arosemena postulates a constitutional democracy as a model in his analysis without having to show its desirability for Latin America. Further, in
his analysis, Arosemena adopts a comparative method and an unbiased
perspective, thereby achieving a neutral stand without noticeable inclination to a particular national legal order. Tocqueville’s ideas undergird
Arosemena’s method and enlighten the analysis in Constitutional Studies.
In Democracy in America, Tocqueville wanted to show how democracy—as equality of condition and a new power—influences the government and laws of America.115 Democracy was not limited to America,
however. Tocqueville believed that democracy was a universal force taking over the world. For him, the advancement of democracy was ineluctable, almost divine: “The various occurrences of national existence have
everywhere turned to the advantage of democracy. . . . The gradual development of the principle of equality is, therefore, a providential fact.”116
Moreover, Tocqueville asserts that “[t]o attempt to check democracy
would be . . . to resist the will of God.”117 Tocqueville advises the leaders
of the world to help advance democracy by adapting it to their unique
places and circumstances. He affirms: “The first of the duties that are at
this time imposed upon those who direct our affairs is to educate democracy . . . to adapt its government to time and place, and to modify it
according to men and to conditions.”118 Arosemena took this advice seriously. He assumed the ineluctable coming of democracy. Constitutional
COLOMBIA 90 (4th ed. 1986) (mentioning in general the influence of Tocqueville in
Arosemena).
115 See TOCQUEVILLE, supra note 113, at 15 (“I have attempted to show the
distinction that democracy, dedicated to its inclinations and tendencies and
abandoned almost without restraint to its instincts, gave to the laws the course it
impressed on the government, and in general the control which it exercised over
affairs of state.”). For a French version, see ALEXIS DE TOCQUEVILLE, DE LA
DÉMOCRATIE EN AMÉRIQUE 49-50 (Jean-Claude Lamberti & Françoise Mélonio eds.,
1986).
116 TOCQUEVILLE, supra note 113, at 6. See also PETER AUGUSTINE LAWLER, THE
RESTLESS MIND: ALEXIS DE TOCQUEVILLE ON THE ORIGIN AND PERPETUATION OF
HUMAN LIBERTY 59 (1993) (“Tocqueville says, that ‘God guides mankind’. God
providentially directs the petty action of each individual toward a goal which
transcends the perspective of each individual . . . . Tocqueville says that this divine
force might, in truth, be either an ‘inflexible providence’ or ‘a kind of blind
fatality.’ ”).
117 TOCQUEVILLE, supra note 113, at 7.
118 Id. See generally Dennis Bathory, Moral Ties and Political Freedom in
Tocqueville’s New Science of Politics, in TOCQUEVILLE’S DEFENSE OF HUMAN
LIBERTY, CURRENT ESSAYS 21 (Peter A. Lawler & Joseph Alulis eds., 1993)
(commenting that according to Tocqueville “to accomplish such education [of
democracy] ‘a new political science’ would be needed.”).
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 26
22-JAN-04
15:28
284 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
Studies is an attempt to find out the particular causes delaying the
advancement of democracy in Latin America.
Arosemena’s analysis resembles Tocqueville’s methodological conception. Tocqueville began a new method for political science: “A new science of politics is needed for a new world.”119 Democracy in America is
an inductive and analytical work that shows how to overcome essentialism in the analysis of political phenomena.120 Tocqueville’s analysis proceeds inductively through comparisons, without discarding abstract
types.121 Some scholars believe Tocqueville thought about France while
writing about America:122 “Using the comparative method, Tocqueville
sought to discover why liberalism had been unable to establish itself in
France as it had done in the Anglo-Saxon countries, even though the
spirit of independence was fiercer in France than anywhere.”123 In short,
119 TOCQUEVILLE, supra note 113, at 7. See also EDWARD T. GARGAN, DE
TOCQUEVILLE (1965) (commenting on Tocqueville’s method and passion).
120 See JEAN-CLAUDE LAMBERTI, TOCQUEVILLE AND THE TWO DEMOCRACIES 233
(Arthur Goldhammer trans., Harvard University Press 1989) (commenting that
“Tocqueville’s is a philosophical theory, but at the same time . . . it is inductive and
analytical, unlike the theories of Bentham and his disciples or those of the eighteenthcentury philosophies”); François Bourricaud, Foreword to LAMBERTI, TOCQUEVILLE
AND THE TWO DEMOCRACIES ix-x (Arthur Goldhammer trans., Harvard University
Press 1989) (“One snare that political “theory” does not always manage to avoid is
that of essentialism. The theorist’s weakness for classifications and abstractions dates
perhaps from the Greeks. . . . One of Tocqueville’s most invaluable contributions was
to teach political philosophers how to remove their essentialist blinders.”).
121 See Bathory, supra note 118, at 23 (commenting that “Tocqueville strives in
both the Democracy and the Old Regime to become an ‘author’ of a third sort.
Neither a simple ‘commentator’—a chronicler of detailed facts and events, nor a
‘publicist’ concerned primarily with general truths, he seeks rather to mediate
between the two.”). See generally SAGUIV A. HADARI, THEORY IN PRACTICE:
TOCQUEVILLE’S NEW SCIENCE OF POLITICS 3-10 (1989) (remarking that Tocqueville’s
work blended several methodological goals and approaches such as the combination
of causal or intentional explanations of human conduct, the formal and interpretative
approaches, the positivism and hermeneutics approach, and micro and macro levels of
analysis).
122 See BERNHARD FABIAN, ALEXIS DE TOCQUEVILLES AMERIKABILD. GENETISCHE UNTERSUCHUNGEN ÜBER ZUSAMMENHÄNGE MIT DER ZEITGENÖSSISCHEN,
INSBESONDERE DER ENGLISCHEN AMERIKA-INTERPRETATION 110 (1957). See also
LAMBERTI, supra note 120, at 103 (commenting that “[a] second possible reading of
Tocqueville would emphasize the lessons that he thought France might draw from the
American experience. This is the reading that Tocqueville encourages in the introduction to Democracy in America.”).
123 LAMBERTI, supra note 120, at 239. See also WHITNEY POPE, ALEXIS DE
TOCQUEVILLE, HIS SOCIAL AND POLITICAL THEORY 32-40 (1986) (commenting that
“[t]hough seldom mentioning France, he did not write a page of Democracy without
thinking about his native land”). Pope also notes that “Tocqueville often poses his
analysis in comparative terms. Tocqueville’s comparisons employed different units of
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 27
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
285
Tocqueville sought empirical regularities and then worked out generalizations.124 For his part, Arosemena analyzed the Latin American societies
comparatively, based on an ideal model of constitutional democracy. He
sought their similarities and differences, explained their deviations from
the ideal of a constitutional democracy, and suggested changes to their
legal orders to bring them closer to that ideal. If to solve the democratic
question in France Tocqueville asked why democracy thrives in America,
Arosemena asked the same question to solve the democratic question in
Latin America.
Arosemena also adopted Tocqueville’s disinterested perspective. Tocqueville warns that he did not write a panegyric:125 “This book is written
to favor no particular views, and in composing it I have entertained no
design of serving or attacking any party.”126 Similarly, Arosemena says
that “[i]f it is true that the historian should not have motherland, neither
religion nor profession, the publicist should be a man . . . of a free and
just conscience, a spirit foreign to concerns and subject only to the
truth.”127 This disinterested perspective allows Arosemena to analyze
Latin American legal orders neutrally, without any noticeable preference
for a particular national legal order. In addition, it allows him to criticize
the advantages and disadvantages of given institutions without regard to
their particular ideological affiliations. Thanks to this disinterested perspective, Arosemena’s comparative analysis achieves a transnational
quality.128
In summary, Arosemena used Tocqueville’s ideas for his analysis of the
Latin American societies. Yet, Tocqueville’s ideas gained a strong normative flavor in Arosemena’s hands. In Democracy in America, a work of
political theory, the sociological and political aspects are in the foreground and are complemented by an institutional analysis. In Constituanalysis. Often he compared two or three nations, focusing particularly on France,
England, and America. . . . Sometimes Tocqueville employed mutually supplementary
inter-and intranational comparisons.” Id. at 34-35; MICHAEL HERETH, ALEXIS DE
TOCQUEVILLE: THREATS TO FREEDOM IN DEMOCRACY 33-35 (George Bogardus
trans., Duke University Press 1986) (“Tocqueville wrote about America but meant
France.”).
124 See John Stone & Stephen Mennell, Introduction to ALEXIS DE TOCQUEVILLE,
ON DEMOCRACY, REVOLUTION, AND SOCIETY: THE HERITAGE OF SOCIOLOGY 26
(John Stone & Stephen Mennell eds., University of Chicago Press 1980).
125 TOCQUEVILLE, supra note 113, at 14 (“Whoever should imagine that I have
intended to write a panegyric would be strangely mistaken.”). See also Stone &
Mennell, supra note 124, at 26 (commenting on the same).
126 TOCQUEVILLE, supra note 113, at 17.
127 CONSTITUTIONAL STUDIES, supra note 1, at para. 12.
128 Cf. MARY ANN GLENDON, MICHAEL WALLACE GORDON, MICHAEL &
CHRISTOPHER OSAKWE, COMPARATIVE LEGAL TRADITIONS IN A NUTSHELL X (1982)
(suggesting that scholarly objectivity and neutrality are necessary mental
characteristics for studying comparative law).
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 28
22-JAN-04
15:28
286 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
tional Studies, a work of constitutional law, the institutional aspects are in
the foreground and are complemented by sociological and political observations. To be sure, Arosemena does not have a comprehensive conception as Tocqueville does. Arosemena’s work developed within the
paradigm developed by Tocqueville, taking his ideas as truthful propositions. For that reason, Constitutional Studies could be considered an
application of Tocquevilles’ conception to Latin American constitutional
law.
The other fundamental model for Constitutional Studies is Hildreth’s
Theory of Politics.129 Arosemena did not quote from Theory of Politics
either. Yet, an examination of Theory of Politics and Constitutional Studies shows that Arosemena borrowed the following ideas from Hildreth:
that society and government are subjected to natural laws; that government is a political equilibrium modifiable through evolution or revolution; that the sources of power are mainly psychological; and that there is
a correlation between civilization and democracy. Arosemena used these
ideas as postulates to frame his method and to heighten its natural science-like features. Based on Hildreth’s ideas, for example, Arosemena
justifies searching for patterns through comparison to harmonize the
Latin American legal orders. If it is possible to determine the laws acting
in a given society, then policy recommendations attuned to those laws
could rationalize policy-making. Accepting the psychological nature of
the basic sources of power led Arosemena to find a common ground
explaining political changes and struggles across societies. In addition, the
correlation between democracy and civilization reinforced Arosemena’s
use of constitutional democracy as a desirable model for Latin America.
Hildreth’s ideas are an important ingredient of Arosemena’s method.
Arosemena borrowed from Hildreth the notion that society and government are subject to natural laws that can be determined by scientific
observation.130 Hildreth attempted “to apply rigorously and systemati129
RICHARD HILDRETH, THEORY OF POLITICS: AN INQUIRY INTO THE
FOUNDATIONS OF GOVERNMENTS, AND THE CAUSES AND PROGRESS OF POLITICAL
REVOLUTIONS (A.M. Kelley 1970) (1854) [hereinafter POLITICS]. Politics is one of
Hildreth’s major philosophical works, which were to include works on the theory of
wealth, the theory of taste, the theory of knowledge, and the theory of education.
Hildreth wanted to systematize those inquiries under the general title Rudiments of
the Science of Man. Yet, only Theory of Morals and Politics were completed; the
others were left unfinished. See MARTHA M. PINGEL, AN AMERICAN UTILITARIAN,
RICHARD HILDRETH: AS A PHILOSOPHER (1948) (analyzing Hildreth’s works and
stating that Hildreth may be remembered for his translation of Etienne Dumont
version of BENTHAM’s THEORY OF LEGISLATION (London, K. Paul, Trench, Trübner
7th ed. 1891) and as the author of the six-volume work about American history).
130 The methodological foundation of Politics is found in RICHARD HILDRETH,
THEORY OF MORALS, AN INQUIRY CONCERNING THE LAW OF MORAL DISTINCTIONS
AND THE VARIATIONS AND CONTRADICTIONS OF ETHICAL CODES 14-5, 29, 38, 58-9,
135-36, 263, 269 (A.M. Kelley 1971) (1844) [hereinafter MORALS].
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 29
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
287
cally . . . the Inductive Method of Investigation—a method which in Physical Science has proven successful beyond expectation; but . . . has been
very partially employed . . . upon the yet nobler and more important Science of Man.”131 Similarly, Arosemena asserted, “nature . . . did not ask
us to solve riddles to discover its laws, but only patient observation.”132
Arosemena also borrowed Hildreth’s idea of government as a political
equilibrium modifiable through revolution or evolution. Analyzing the
political equilibrium called government, Hildreth asked: “What are those
sources of power, those elementary forces, from the balance of which
springs that political equilibrium which we call Government, and from the
disturbance and overturn of which arises what we call Revolution, ending,
in its turn, by producing a new equilibrium, a new government.”133 Similarly, explaining the laws influencing political phenomena, Arosemena
equates government with a political equilibrium, including the revolutions affecting a government.134
In addition, Arosemena used Hildreth’s notion about the sources of
power on which society and government rest. For Hildreth, there are primary elements of power, or intrinsic sources of inequality, such as knowledge, eloquence, and virtue. Moreover, there are secondary elements of
power, or extrinsic sources of inequality, such as wealth, traditional
respect, and mystical ideas.135 Arosemena mentioned some of these same
sources of power to explain the natural foundation of the government.136
For Hildreth, the forces that produce the political equilibrium—or government—are above all psychological: the pleasure of superiority and the
pain of inferiority. These forces are the basis of the disposition to dominate, to obey, and to resist.137 Similarly, Arosemena borrowed these
ideas, saying:
There is in the human mind the capacity or disposition to dominate
as well as there is the sentiment or disposition to obey, and those two
simple laws are the elemental principle of every government. Correlative to these dispositions, there is a third disposition, which compels
an individual to resist any oppressive domination.138
Arosemena also adopted Hildreth’s idea about a correlation between
the progress of civilization and democracy. Explaining how a form of government influences the progress of civilization and human happiness in
general, Hildreth said that progress of civilization includes four branches:
131
Id. at 14.
CONSTITUTIONAL STUDIES, supra note 1, at para. 872.
133 POLITICS, supra note 129, at 16. See also id. 15-20.
134 CONSTITUTIONAL STUDIES, supra note 1, at para. 9.
135 POLITICS, supra note 129, at 16. See also id. at 31-46, 40-68.
136 CONSTITUTIONAL STUDIES, supra note 1, at paras. 8-9.
137 POLITICS, supra note 129, at paras. 16-17.
138 CONSTITUTIONAL STUDIES, supra note 1, at paras. 8, 628 (referring to the
political laws of domination and veneration).
132
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 30
22-JAN-04
15:28
288 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
the advancement and diffusion of knowledge; the accumulation and diffusion of wealth; the increase of the average force of the sentiment of
benevolence (moral progress); and an increased sensibility to several
pleasures and pains (aesthetic progress). Hildreth explains: “These four
branches of civilizations always tend, in the long run, to promote each
other; nor can the progress of either be continued to any great extent,
except simultaneously with the advancement of the others.”139 According
to Hildreth, democracy is the superior form of government in the furtherance of civilization’s progress; it offers the greatest advantages because
“while all are obliged to submit to the pain of obeying, all are allowed to
participate also in the pleasure of commanding.”140 Moreover, through
elections, democracy sets a standard by which to measure the natural elements of power, and allows “a peaceful change, both of rulers and of
policy.”141 More importantly, democracy ideally “tend[s] to afford” all
citizens “an equal chance” to education, to wealth, and to aesthetic satisfactions because it is based on the principle of equality.142 As discussed
above, for Arosemena the standard by which to measure the degree of a
country’s civilization is how close the society has come to attaining an
effectively organized constitutional democracy.143
In summary, Hildreth’s ideas heightened Arosemena’s view of the
empirical nature of the science of politics, helping him to simplify the
political data of the Latin American societies. If power, government, and
society are subject to the same laws everywhere, then the political events
in the Latin American societies could be explained by those general laws.
Nevertheless, Arosemena did not elaborate a comprehensive conception
about the science of politics as Hildreth did. As with Tocqueville’s ideas,
Arosemena takes Hildreth’s ideas as truthful findings on which to base a
normative analysis.
Democracy in America and Theory of Politics were essential models for
Constitutional Studies. Considering the affinity of Tocqueville and Hildreth’s works, this is hardly surprising. Both considered democracy a
superior form of government; both assumed that by observing empirical
regularities, it is possible to obtain generalizations inductively; both
understood the notion of universal history as the history of the European
139
POLITICS, supra note 129, at 230.
Id. at 253.
141 Id. at 255.
142 Id. at 261 (stating that except in so called “civic aristocracies,” “in other forms
of government . . . the great mass of people are cut off from all pretensions to
knowledge, to taste, and to wealth”).
143 Although less evident, there is also a similarity between Hildreth’s moral
foundation of politics and law and that of Arosemena. Compare MORALS, supra note
130, at 14-5, 29, 38, 44, 58-9, 135-36, 263, 269 with CONSTITUTIONAL STUDIES, supra
note 1, at para. 1707.
140
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 31
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
289
“race”; and both opposed slavery.144 Democracy in America seemingly
focuses on one case of democracy, the United States of America; but, as a
discourse of political theory, its contributions were generally applicable
to the analysis of modern democracy.145 Theory of Politics focuses on the
sources of political power and its laws in general; yet, its exposition closes
with the analysis of democracy in the United States.146 In fact, Theory of
Politics provided a philosophical foundation for a previous work by Hildreth, History of the United States.147 In some ways, Hildreth’s book is an
expansion at a higher level of abstraction of Tocqueville’s commentaries
about the origin of power. In summary, Arosemena wrote Constitutional
Studies based on Tocqueville and Hildreth’s ideas. He extrapolated their
assumptions, epistemological ideas, and political notions to Latin American constitutional law.
B. Significant Models: Mill, Laboulaye, and Colmeiro
Arosemena relied on John Stuart Mill’s Considerations on Representative Government to support assertions on several topics.148 The influence
144
Cf. RICHARD HILDRETH, DESPOTISM IN AMERICA: AN INQUIRY INTO THE
NATURE, RESULTS, AND LEGAL BASIS OF THE SLAVE-HOLDING IN THE UNITED
STATES (Negro Universities Press 1968) (1854). In addition, Hildreth wrote the novel
ARCHY MOORE (Negro Universities Press 1969) (1832), later called The White Slave,
which Pingel considers “a forerunner of all antislavery novels in this country.”
PINGEL, supra note 129, at 4.
145 Cf. François Bourricaud, supra note 120, at ix-x. Bourricaud states:
The comparative lack of success of the second volume, published in 1840, was
due to the difficulty of a work which asked not just about the future of American
democracy but about the future of democracy in modern society generally.
Nevertheless, it is superficial to see the first volume as a monograph on
American institutions and the second as a sequel composed of timeless and
moralizing reflections on the ‘essence’ of democracy.
Id. See also SHELDON S. WOLIN, TOCQUEVILLE BETWEEN TWO WORLDS: THE MAKING OF A POLITICAL AND THEORETICAL LIFE 59 (2001) (“Tocqueville was the first
political theorist to treat democracy as a theoretical subject in its own right.”).
146 See POLITICS, supra note 129, at 263 (criticizing Tocqueville for focusing on
America to analyze democracy, when it was also possible to trace the democratic
spirit in Europe).
147 See POLITICS, supra note 129, at prologue; PINGEL, supra note 129, at 3-8. Cf.
RICHARD HILDRETH, THE HISTORY OF THE UNITED STATES OF AMERICA, FROM THE
DISCOVERY OF THE CONTINENT TO THE ORGANIZATION OF GOVERNMENT UNDER
THE FEDERAL CONSTITUTION (Harper 1970) (1849).
148 JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT
(Regnery 1962) (1861) [hereinafter CONSIDERATIONS]. In the introduction to
Constitutional Studies, Arosemena mentioned Considerations as a valuable
contribution to political science. CONSTITUTIONAL STUDIES, supra note 1, at para. 12.
In the chapter on Bolivia, Arosemena uses Considerations to bolster the need for an
elected aristocracy in a second legislative chamber to moderate the lower democratic
legislative chamber, id. at para. 579, and to support the advantages of the indirect
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 32
22-JAN-04
15:28
290 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
of Mill on Arosemena was richer than to have quoted Considerations,
however.149 There are implicit parallels between Arosemena’s exposition
and Mill’s ideas. Mill approved of Tocqueville’s method for the sciences
of politics; asserted the compromise as an important condition for practical politics; and believed in a correlation between the historical stage of
civilization of a society and its form of government.150 Through Mill,
Arosemena corroborated the need for a more empirically oriented
method for understanding political phenomena. More importantly, the
value of compromise guided Arosemena in the formulation of sensible
policy recommendations, while the notion of developmental stages of
society was a component of Arosemena’s comparative project.
In the review Mill wrote about Democracy in America, he concluded
that this book was the first philosophical work about modern democracy,151 and it marked the beginning of a new era for the science of politelection of the president, id. at paras. 589-92. In the chapter on Peru, Arosemena uses
Considerations to endorse the need for the representation of minorities, in order to
avoid the despotism of parliamentary majorities, and to achieve proportional electoral
vote. Id. at paras. 729, 732. Moreover, in the chapter on Ecuador, Arosemena adopted
John Stuart Mill’s concept of suffrage. Id. at para. 869.
149 Arosemena used the Spanish version of Considerations. See JOHN STUART
MILL, EL GOBIERNO REPRESENTATIVO (Florentino González trans., Imprenta y
Libreria del Mercurio de S. Tornero e Hijos 1865). The use of González’s translation
speaks to the Latin American intellectual background surrounding Constitutional
Studies. González, one of the most recognized Colombian liberal intellectuals in the
nineteenth century, was a unabashed anglophile. See JARAMILLO URIBE, supra note
110, at 34, 199. For instance, in the foreword of González’s translation, he suggests
following the Anglo-Saxon example for a good government and he decries the
influence of French theories on Latin American youth because he believed that, in
France, except for Tocqueville and Laboulaye, whimsical publicists abounded. See
Florentino González, Foreword to JOHN STUART MILL, EL GOBIERNO
REPRESENTATIVO, supra, at 5-6. Cf. FLORENTINO GONZÁLEZ, CONSTITUCIONES DE
ALGUNOS DE LOS ESTADOS DE LA UNIÓN AMERICANA 3-4 (Buenos Aires, Impr. y
Libreria de Mayo 1872). González argues for seeking adequate models for the
political organization of Latin American countries, and contends that the adoption of
wrong models has resulted in unsuitable constitutions. In short, some of González’s
concerns about the constitutional organization of Latin American countries are
similar to Arosemena’s concerns in Constitutional Studies. González, Foreword to EL
GOBIERNO REPRESENTATIVO, supra, at 13-14. See also FLORENTINO GONZÁLEZ,
LECCIONES DE DERECHO CONSTITUCIONAL (2d. ed., Librerı́a De Rosa y Bouret,
1871) (expressing similar ideas).
150 See R. J. HALLIDAY, JOHN STUART MILL 39-40 (1976).
151 See John Stuart Mill, M. de Tocqueville on Democracy in America, in 2
DISSERTATIONS AND DISCUSSIONS: POLITICAL, PHILOSOPHICAL, AND HISTORICAL 183 (Haskell House Publishers 1973) (1875) (stating that “[i]t is not risking too much to
affirm of these volumes, that they contain the first analytical inquiry into the
influences of Democracy”). See also WOLIN, supra note 145, at 59 (remarking that
“Democracy in America represents the moment when democracy first came into focus
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 33
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
291
ics.152 Rather than praise his conclusions, Mill praised Tocqueville’s
method, which he analogized with the method of Bacon and Newton, “a
combination of deduction with induction.”153 In fact, Mill’s study of Tocqueville contributed to “a shifting of [Mill’s] political ideal from pure
democracy . . . to the modified form of it, which is set forth in [his] ‘Considerations on Representative Government.’”154 Arosemena embraces
Mill’s opinion about the significance of the new method used by Tocqueville for the science of politics.
The Mill of Considerations argues that science, which deals with the
commendable, should be a servant to the art of politics, which deals with
the practicable.155 For practicable politics, Mill valued compromise the
most, proclaiming a politics of consensus. Mill’s emphasis on consensus
for practicable politics was the result of his intellectual transformation of
around 1826, when he suffered a personal crisis, abandoned Bentham’s
School, and became a pragmatist and an eclectic.156 Mill’s notion of the
as the central subject of a political theory” and that John Stuart Mill was right when
he hailed Democracy as “the first philosophical book ever written on Democracy, as it
manifests itself in modern society.”).
152 JOHN STUART MILL, M. de Tocqueville on Democracy in America, supra note
151, at 3 (“[Democracy in America] constitutes the beginning of a new era in the
scientific study of politics.”).
153 Mill notes:
The value of [Tocqueville’s] work is less in the conclusions, than in the mode of
arriving at them. He has applied to the greatest question in the art and science of
government, those principles and methods of philosophizing to which mankind
are indebted for all the advances made by modern times in the other branches of
the study of nature.
Id. at 4-5.
154 JOHN STUART MILL, AUTOBIOGRAPHY AND OTHER WRITINGS 115 (Jack
Stillinger ed. 1969) (1873). See also BRUCE MAZLISH, JAMES AND JOHN STUART
MILL: FATHER AND SON IN THE NINETEENTH CENTURY 233 (1975) (commenting on
John Stuart Mill’s change on the subject of democracy).
155 See Geraint L. Williams, Introduction to JOHN STUART MILL, ON POLITICS AND
SOCIETY 9-10, 13, 28-29 (Geraint L. Williams, ed. 1976). Cf. JAMES MILL, POLITICAL
WRITINGS (Terence Ball ed., 1992); HALLIDAY, supra note 150, at 3, 15, 29, 35.
156 See MILL, AUTOBIOGRAPHY, supra note 154, at 80-110. In his autobiography,
Mill writes:
If I am asked, what system of political philosophy I substituted for that which, as
a philosophy, I had abandoned, I answer, no system: only a conviction that the
true system was something much more complex and ‘many-sided’ than I had
previously had any idea of, and that its office was to supply, not a set of model
institutions, but principles from which the institutions suitable to any given
circumstances might be deduced.
Id. at 97. See also MAZLISH, supra note 154, at 205-30 (analyzing John Stuart Mill’s
mental crisis). Among the events that contributed to Stuart Mill’s intellectual transformation was the attack of the Whig historian Thomas Babington Macaulay against
his father’s, James Mill’s, Essay on Government, which made John Stuart Mill reflect
on the foundations of Bentham’s theory. Macaulay argued that the deductive method
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 34
22-JAN-04
15:28
292 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
different tasks of science and of the art of politics is found in
Arosemena’s work.157 Arosemena’s choosing of Macaulay’s maxim, “The
essence of Politics is compromise,” as a vignette for Constitutional Studies
does not seem merely ornamental.158 It signals Arosemena’s conviction
about the pivotal value of consensus for practicable politics. This conviction guided Arosemena’s constitutional policy recommendations for
reforming the Latin American legal orders. Arosemena used this conviction as a check for reform proposals that were theoretically possible, but
pragmatically unfeasible.
The Mill of Considerations believed there was a correlation between
the historical stage of civilization and the form of government adopted in
a given society.159 Stuart Mill developed this notion through the influence
of the Saint-Simonians,160 mostly with their notion of the natural order of
human progress classifying historical developments in organic and critical
periods. In organic periods, humanity embraces a positive creed and
internal progress. In critical periods, the creed is abandoned as false, but
a new creed is not yet adopted.161 Based on this idea, Mill accepted that a
is not applicable to politics, in which only the scientific inductive method could warrant a progress comparable to other sciences. See Williams, supra note 155, at 14, 22.
Cf. Terence Ball, Introduction to JAMES MILL, POLITICAL WRITINGS xiv-xxvi (1992)
(commenting about Macaulay’s criticism of Mill). Also, the reading of Tocqueville’s
Democracy in America contributed to John Stuart Mill’s ideological departure from
Bentham’s theory. See Williams, supra note 155, at 14-15.
157 See CONSTITUTIONAL STUDIES, supra note 1, at paras. 1-2.
158 Cf. Rafael Núñez, El sentido polı́tico y la esencia de la polı́tica, in 1 ANTOLOGÍA
DEL PENSAMIENTO POLÍTICO COLOMBIANO 221 (Jaime Jaramillo Uribe ed. 1970)
(discussing Macaulay’s maxim and Great Britain’s virtues). Cf. JARAMILLO URIBE,
supra note 110, at 201 (stating that Núñez and the Samper brothers used to repeat
Macaulay’s maxim in Colombia, which signaled a British-influenced liberalism).
159 See Williams, supra note 154, at 23-34. See also MILL, AUTOBIOGRAPHY, supra
note 154, at 97 (stating “[t]hat all questions of political institutions are relative, not
absolute, and that different stages of human progress not only will have, but ought to
have, different institutions”).
160 See RICHARD K. P. PANKHURST, THE SAINT SIMONIANS, MILL AND CARLYLE:
A PREFACE TO MODERN THOUGHT 6–28 (1957) (describing the exchange of ideas
between Mill and the Saint Simonians); Markham, supra note 75, at xlii (saying that
“to trace the effects [of St. Simonian ideas] would indeed, mean nothing less than
writing the intellectual history of nineteenth-century Europe. . . . Through John Stuart
Mill and Carlyle, St. Simonian ideas modified English individualism.”). See generally,
FRENCH UTOPIAS: AN ANTHOLOGY OF IDEAL SOCIETIES 283 (Frank E. Manuel &
Fritzie P. Manuel eds. 1966) (describing the tenets of Saint Simonians’ movement and
reproducing some of their writings). For an account of Saint Simon’s ideas and life see
generally FRANK E. MANUEL, THE NEW WORLD OF HENRI SAINT-SIMON (1956) and
HENRI SAINT-SIMON, SELECTED WRITINGS ON SCIENCE, INDUSTRY, AND SOCIAL
ORGANIZATION (Keith Taylor ed., 1975).
161 See MILL, AUTOBIOGRAPHY, supra note 153, at 98-99. Further, Mill offered
examples: “[T]he period of Greek and Roman polytheism . . . was an organic period,
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 35
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
293
reform in practical politics needs historical knowledge. “[T]o be effective,” he wrote, the reformer would have “to ascertain what is the state
into which, in the natural order of the advancement of civilization the
nation in question will next come.”162 This idea of developmental stages
of civilizations is found implicitly in Considerations.163 Here, Mill argues
that a political institution has to be “adjusted to the capacities and qualities of such men as are available.”164 Only then is it possible to expect
that the people would be willing to accept a particular political institution
and to do what is needed to achieve its purpose.165 In fact, “[a]ll that we
are told about the necessity of a historical basis for institutions, of their
being in harmony with the national usages and character, and the like,
means either this, or nothing to the purpose.”166 Besides, when a nation
can adopt or learn new institutions, “[i]t is quality in which different
nations, and different stages of civilization, differ much from one
succeeded by the critical or sceptical period of the Greek philosophers. Another
organic period came in with Christianity. The corresponding critical period began
with the Reformation . . . .” Id. at 99. Mill point outs that “[t]hese ideas . . . were not
peculiar to the St. Simonians; on the contrary, they were the general property of
Europe, or at least of Germany and France, but they have had never, to my
knowledge, been so completely systematized as by these writers, . . . .” Id.
162 IRIS WESSEL MUELLER, JOHN STUART MILL AND FRENCH THOUGHT 58 n.37
(1956) (quoting John Stuart Mill’s letter to d’Eichthal of November 7, 1829). Mueller
warns, however, that Mill did not share the notion of the progress of history as
uniformly pre-determined as the Saint Simonians did: “[Mill] held, on the contrary,
and in a more empirical spirit, that ‘different nations, indeed different minds, may and
do advance to improvement by different roads.’ ” Id. at 59. See also HALLIDAY, supra
note 150, at 26-27. Halliday states that for the Saint Simonians:
[T]he first step in the investigation of practical political truths . . . [was] to
ascertain what . . . [was] the state into which, in the natural order of the
advancement of civilisation the nation in question will next come; in order that it
may be the grand object of our endeavors, to facilitate the transition to this state.
Id.
163 See DENNIS F. THOMPSON, JOHN STUART MILL AND REPRESENTATIVE
GOVERNMENT 136-173 (1976) (explaining that for Mill a general theory or philosophy
of politics assumes a previous theory about human progress). According to
Thompson,”[a]lthough Mill never elaborates a theory of this kind in Representative
Government, he implicitly relies on one at many crucial points in his argument, and he
sometimes explicitly appeals to one as well.” Id. at 136. The author points out,
however:
It would be misleading to call Mill’s theory a philosophy of history, as he
sometimes does himself, were it not that ‘history’ fails to capture Mill’s emphasis
on the future course of human development. More appropriate is the term
“development,” which is somewhat more neutral than ‘progress’ and more
general than “history.”
Id. at 136-37.
164 CONSIDERATIONS, supra note 148, at 5.
165 See id.
166 Id. at 10.
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 36
22-JAN-04
15:28
294 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
another.”167 Mill also thought that although a people may not be prepared for a new institution, it is advisable to propose good institutions as
a way of educating the people: “To recommend and advocate a particular
institution or form of government, and set its advantages in the strongest
light is one of the modes, often the only mode within reach, of educating
the mind of the nation.”168 Mill concludes: “to introduce into any country
the best institutions which, in the existing state of that country, are capable of, in any tolerable degree, fulfilling the conditions, is one of the most
rational objects to which practical effort can address itself.”169 Analogously, based on the idea of a correlation between a society’s degree of
civilization and its form of government, Arosemena tried to determine
the historical stage of civilization of each Latin American society. This
was the purpose of the constitutional history accompanying each constitution in the Antecedents sections. Arosemena’s conviction that the Latin
American nations were not ready for democracy, but that it was necessary to propose it as a way of educating the people also resembles Mill’s
ideas closely.
In summary, Arosemena agrees with Mill’s reading of Democracy in
America as devising a new method for political science. Arosemena also
applied Mill’s notions that the first step of a constitutional analysis is to
determine the developmental stage of each particular nation, and that
compromise is essential for practical politics. Arosemena uses Mill’s
notions as a guide to formulate policy recommendations. Arosemena suggests only those sensible reforms that a society could bear according to
that society’s stage of development.
The two-volume Estudios sobre la Constitución de los Estados-Unidos
by Edouard Laboulaye was another significant influence on Constitutional Studies.170 Laboulaye’s book is quoted with approval in Constitutional Studies on several topics.171 Although not explicit, the use of
167
Id. at 11 (emphasis added).
Id. at 11-12.
169 Id. at 12.
170 EDOUARD DE LABOULAYE, ESTUDIOS SOBRE LA CONSTITUCION DE LOS
ESTADOS-UNIDOS (Joaquin Guichot trans., E. Perié y Compañia 1869). In the
introduction to Constitutional Studies, Arosemena mentions this book as a valuable
contribution to the political sciences. CONSTITUTIONAL STUDIES, supra note 1, at
para. 12.
171 For instance, in the chapters on Brazil and Bolivia, Laboulaye’s book is used to
support the advantages of having two legislative chambers. CONSTITUTIONAL
STUDIES, supra note 1, at paras. 95, 558-68. In the chapter on Bolivia, it is quoted to
praise the American Senate as an elected aristocracy that assures a balanced
government. Id. at para. 578. In the same chapter, the book is used to compare
judicial review with the review of laws (control de legalidad) in France. Id. at paras.
605-06. In the chapter on Peru, Laboulaye’s book is used to support the
recommendation that minorities should be represented in each electoral district, id. at
para. 730, and in the chapter on Ecuador, it is quoted to reinforce the idea that an
168
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 37
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
295
Laboulaye’s work suggests another deep influence on Arosemena.172
Laboulaye’s work exposed Arosemena to an example of how to use comparative constitutional law to further constitutional reform. Laboulaye’s
work contains three important ideas for the comparative constitutional
law method: that “better” solutions for solving similar problems can be
learned from the experience of other legal orders; that despite the use of
similar words, two legal communities may refer to different concepts; and
that the political and legal developments in one society influence others
worldwide.
For Laboulaye, comparative law is a way of furthering the exchange
between nations seeking institutional reforms to avoid revolutions.173 In
fact, Laboulaye studied the U.S. Constitution to learn how to ameliorate
France’s instability.174 Laubolaye was concerned with the constant French
revolts and wanted to restrain the legislative power affecting individual
rights.175 He said, “[r]eading Rousseau it is not a surprise to see
Robespierre proclaiming the Supreme Being’s cult . . . it must be easy to
understand, that when he was presiding over that party he believed to be
the Licurgo of a regenerated France.”176 He added: “Saint-Just . . . has
given us fragments of republican institutions . . . [when] caught by events
bringing him to the guillotine . . . .[F]or Saint-Just, it was an easy thing to
remake a nation, not only giving laws to the people, but also customs.”177
Laboulaye criticized the prevailing view in France about the notion of
effective constitution has to be accepted by the people. Id. at para. 859. There is also a
paraphrase from Laboulaye regarding the risk of drafting whimsical constitutions.
Compare LABOULAYE, ESTUDIOS, supra note 170, at 12 with CONSTITUTIONAL
STUDIES, supra note 1, at para. 800. In the same chapter, Laboulaye is quoted to
support women’s right to vote, and to support the advantages of an indirect election,
at least for one legislative house. CONSTITUTIONAL STUDIES, supra note 1, at paras.
875, 887.
172 Laboulaye’s book is a compilation of lectures given in 1864 at the Collège de
France, where Laboulaye began to teach comparative law in 1849 at a cátedra
(professorship) created in 1832 under the title Législation Comparée. See MICHAEL
STOLLEIS, NATIONALITÄT UND INTERNATIONALITÄT: RECHTSVERGLEICHUNG IM
ÖFFENTLICHEN RECHT DES 19. JAHRHUNDERTS 10-11 (1998).
173 See O. Motte, Laboulaye, Edouard-René Lefebvre de (1811-1883), in Michael
JURISTEN: EIN BIOGRAPHISCHES LEXIKON VON DER ANTIKE BIS ZUM 20
JAHRHUNDERT, supra note 2, at 367.
174 Explaining his reasons for studying the United States, Laboulaye said:
I thought, above all, in my country, in this beloved France. Countries have not
been organized to exist in isolation; they need to know and esteem each
other . . . . What I want is that France becomes the model of the nations in
politics, as it is in other fields. Many times, we have been the first in arms, in
literature and in art: why we would not be also the first in liberty.
2 LABOULAYE, ESTUDIOS, supra note 170, at 281-83.
175 See id. at vii.
176 Id. at 12-13.
177 Id.
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 38
22-JAN-04
15:28
296 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
popular sovereignty as developed by Rousseau. Popular sovereignty was
universal will. Therefore, the French understood the notion of popular
sovereignty as “absolute, and hence despotic, which can only result in
tyranny.178
Americans understood popular sovereignty differently; for them it was
the general will applicable to the general interest in the country. Yet, the
common interests were not all encompassing. Outside of the common
interests, there were individual interests, over which the general will has
no influence.179 Individual liberties, such as freedom of speech, belong to
the individual as man or woman, and not as citizen. No majority can
interfere with this individual liberty. Thus, in America the popular sovereignty has limited power.180 Using the same word, Americans and French
express different ideas.181 According to Laboulaye, in France the constitution did not limit representatives to using “the law of the next day [to]
revoke or infringe the law of the day before.”182 In America, the judicial
power keeps the legislative power at bay, said Laboulaye.183 Laboulaye
thought the Americans had better political conceptions than the French,
contributing to the stability of American society, and therefore better
protected individual liberty. In addition, Laboulaye’s comparative law is
rooted in ideas about the solidarity of, and the interdependent development among, the nations: “We suffer, when despotism grows in one country and when freedom weakens in another. It is impossible that Russia
would be a despotic power, without threatening Germany, and without
resenting liberty in France.”184
Arosemena’s ideas parallel some of Laboulaye’s ideas. As Laboulaye
shows concern with France, Arosemena shows concern for the instability
and constant revolts in Latin American societies that affected individual
liberty. Like Laboulaye, Arosemena postulates a sphere of individual liberty in which the legislature should not intervene.185 With Laboulaye,
Arosemena shares the opinion that America was more advanced in protecting individual liberty.186 More importantly, Laboulaye’s work
exposed Arosemena to the use of other legal experiences to solve similar
problems across legal orders. The search, through comparison, for fitting
solutions according to the circumstances of each country is noticeable in
Arosemena’s exposition. For instance, Arosemena criticizes the election
of the President of Uruguay by the legislative chambers—the House of
178
179
180
181
182
183
184
185
186
LABOULAYE, ESTUDIOS, supra note 170, at ii.
Id.
Id. at iii.
Id.
Id. at v-vi.
Id. at vi.
LABOULAYE, ESTUDIOS, supra note 170, at 281.
See CONSTITUTIONAL STUDIES, supra note 1, at para. 411.
See id. at para. 283.
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 39
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
297
Representatives and Senate—rather than by the people directly.
Arosemena, comparing this method to French parliamentary theory,
points out that the method does not correspond to the overall institutional arrangement of the Uruguayan Constitution. In the French theory,
the executive is a delegate of the legislature and enjoys powers appropriate to keeping a mutual check between the executive and the legislature.
For example, the French assembly can revoke the executive’s appointment, while the executive can call for new elections, dissolving the assembly. This is not the arrangement of the Uruguayan executive, in which the
president was elected for four years without possibility of immediate subsequent reelection, and did not have the power to dissolve the assembly.
Arosemena implies that the president’s election by the general assembly
in Uruguay, while still within an overall presidential arrangement, operates differently than in a parliamentary system. While in the French theory there is a mutual check between the executive and the assembly,
there was no such check in the Uruguayan system. Furthermore,
Arosemena argues that French parliamentary theory would be difficult to
apply in Uruguay because it did not correspond to the political level of
Uruguay’s democracy. Thus, he suggests that the president should be
elected by popular suffrage and should not be subordinate to the general
assembly.187
The issue of the president’s reelection presents another example of this
search for fitting solutions through comparison. Arosemena considers
that allowing the reelection of the president results in an exorbitant concentration of powers and causes the reelection to become a priority for
the administration, which then puts aside other essential national priorities.188 He suggests banning presidential reelections, and predicts that
even in the United States there will be a ban on presidential reelections at
some point.189 Nonetheless, in nations with scarce men and women of
talent for political leadership, it would be enough to ban the presidential
reelection only for the subsequent period, as the Constitution of Paraguay contemplated.190 Arosemena also profited from Laboulaye’s idea
that comparative law is rooted in the solidarity and interdependence of
nations. From his reading of Laboulaye, Arosemena understood that to
have democracy in each Latin America country it was necessary to strive
for democracy on the whole continent.191 Knowing the failure of governmental alliances and suspicious of local oligarchies that had slowed down
187
See id. at paras. 395-400.
See id. at para. 233.
189 See id. at para. 234.
190 See id. at para. 460.
191 Arosemena also understood the political weight of the size of the territory and
the population. Although the size of the population in itself does not bring
recognition as an international power, the combination of size and organization of the
population can be a source of a country’s influence. See Rainer Münz, Mehr Kinder,
188
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 40
22-JAN-04
15:28
298 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
the advancement of democracy in Latin America, Arosemena stresses a
harmonization of Latin American legal orders that would facilitate the
free movement of people among Latin American nations.
Arosemena disregards some important issues in his method of comparison, however. Despite having been exposed to Laboulaye’s cautious
analysis of categories among legal orders, in which similar or identical
words can have different meanings, Arosemena proceeds in his comparative commentaries as if there were a universal understanding among legal
orders about political and constitutional categories. This lack of conceptual subtlety would perhaps be less significant if Arosemena’s comparative observations were limited to Latin American legal orders, as
promised in the introduction of Constitutional Studies; it would be easier
to accept Arosemena’s premise that there are more cultural similarities
than differences among the Latin American countries, and that they
share a common constitutional theory. Yet, Arosemena also makes observations about given issues and institutions from European countries and
from the United States. It could be argued that Arosemena assumed that
Latin American countries adopted constitutional models from those legal
traditions. Still, even Laboulaye indicates some differences in meanings
between words among the legal systems. How could Arosemena assume
that by using the same words each legal order was referring to the same
question? Arosemena usually relied on national commentators for interpreting a given institution. Nonetheless, his observations are taken unsystematically from different legal orders worldwide.
Derecho Constitucional de las Repúblicas Hispano-Americanas by
Manuel Colmeiro is another important influence in Constitutional Studies.192 In addition to quoting Colmeiro’s work on some topics,193
Arosemena also implicitly shares some ideas with Colmeiro. For instance,
both agreed on the need to harmonize the constitutional orders and to
promote the political alliance of South America. Yet, while Colmeiro
conceived of this alliance of governments as limited to Spanish-America
mehr Macht, DIE ZEIT, Mar. 2003, available at http://www.zeit.de/2003/03/
Demographie.
192 MANUEL COLMEIRO, DERECHO CONSTITUCIONAL DE LAS REPÚBLICAS
HISPANO-AMERICANAS (A. Calleja 1858).
193 For example, Colmeiro’s work is used in the chapter on Uruguay for a brief
historical account of the relation between the church and the state. CONSTITUTIONAL
STUDIES, supra note 1, at paras. 376-80, 382-83. It was also used in the chapter on
Bolivia to explain that the election method and the tenure of the members of the
legislature should correspond to the existing division of the legislature in two
chambers. See id. at paras. 573-77. Finally, Colmeiro’s work was used in the chapter
on Ecuador to maintain that in order to be effective, a constitution must take into
account the real political forces in a society. Id. at para. 898.
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 41
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
299
and affected by European influences,194 Arosemena envisioned a Latin
America, including Brazil and Haiti, united by people enjoying similar
constitutional rights, and free from European influences. In addition,
Colmeiro stresses the value of Spanish institutions as models because
they would organize the same “race.”195 Arosemena’s democracy is not
limited to one “race,” but includes every ethnic group in a society. As
mentioned, he deplores the condition of the indigenous in Latin American. Arosemena also stresses Anglo-American institutions as models
because they would further modernity and progress for Latin America;
but, at the same time, he insists on seeking institutional arrangements
adapted to the circumstances of each society.
In addition, both Colmeiro and Arosemena used comparative law,
albeit with radically different methods. Colmeiro’s work exposes a doctrinal subject matter, and then states in which way that subject matter has
been regulated in the constitutional texts.196 In other words, Colmeiro
determines whether a constitutional provision has conformed to a given
doctrine. Contrariwise, Arosemena begins with the complete constitutional texts, expounds on their political and historical antecedents, then
analyzes them, explaining their similarities to and differences from a
model of constitutional democracy, and finally ends with policy recommendations for reform. At any rate, Arosemena was exposed to
Colmeiro’s idea of using comparative constitutional law for integrationist
purposes in Latin America.
In summary, Mill, Laboulaye, and Colmeiro provided Arosemena with
arguments and examples on some subjects, particularly on the formulation of policy recommendations. Arosemena quoted the authors correctly, without reservations. More importantly, through these authors
Arosemena was exposed to ideas helpful in the construction of his comparative project: that societies are in different stages of development
(from Mill), and that comparative law could be use for legal reform (from
Laboulaye) and integration (from Colmeiro). Moreover, there is a transnational constitutional and political discourse in Arosemena’s world. This
assumption of transnationality may work at a general level in the comparative analysis, but it should not been taken for granted. Taking it for
granted would open Arosemena to the criticism that he did not understand the particularities of a given constitution. Arosemena’s comparative
observations are more convincing when he deals with sociological and
historical questions. When it comes to his normative analysis, Arosemena
194 See COLMEIRO, supra note 192, at vii-viii (analyzing the constitutions of Chile,
Peru, Mexico, the Confederation of Argentina, Buenos Aires, and Nueva Granada,
now known as Columbia).
195 See id. at xii-xiv, 75, 383-84.
196 See id. at 199 (commenting that “having exposed the theory of elections, we will
proceed to examine how it is understood and applied by the Hispano-American
Republics that the subject of our study”) (author translation).
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 42
22-JAN-04
15:28
300 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
relies more on authoritative doctrine and on an uncritical use of universal
constitutional categories. At this point, Arosemena satisfies himself too
easily with making generalizations about the level of a society’s evolution
to explain a given institution. Yet, he maintains a key assumption for
comparison: that is possible to identify common problems and search for
better solutions across legal orders using transnational constitutional
categories.
C. Comparative Law Method in Constitutional Studies
Arosemena composed his method from various discourses. Constitutional Studies extrapolates Tocqueville’s method and Hildreth’s notions to
the analysis of the Latin American societies. Tocqueville and Hildreth
provided Arosemena with a conception of modern democracy and with
the firm belief that the expansion of democracy was universal. Applied
works rely on theory, axioms, and postulates, briefly, a Weltanschauung.
This is what Tocqueville and Hildreth contributed to Arosemena’s
method. In addition, Constitutional Studies adopts Mill’s notions about
the developmental stages of nations, and shows some similarities with
Laboulaye and Colmeiro in the use of comparative law for purposes of
legal reform. Constitutional Studies is, however, a distinct work. It comprehensively compiles Latin American constitutional texts and their constitutional histories. In addition, it inductively compares their
constitutional institutions, determines their similarities and differences,
and proposes policy recommendations for furthering legal harmonization.
Arosemena describes his comparative constitutional law method. It is a
method for determining the laws of political evolution to see whether and
how the differences between legal orders are justifiable.197 According to
Arosemena, only those aspects not related to each state’s justification for
existence should be harmonized.198 Arosemena’s point of departure in
197
CONSTITUTIONAL STUDIES, supra note 1, at para. 40.
See id. Harmonization refers to the process by which laws and institutions are
standardized, or at least made compatible, among different legal orders. There is a
difference of degree between harmonization and unification. While harmonization
aims to bring together two or more legal institutions, unification aims for to
uniformity legal institutions. See, e.g., THOMAS WEIMER, GRUNDFRAGEN
GRENZÜBERSCHREITENDER RECHTSETZUNG 21-25, 86-90 (1995) (distinguishing
between Rechsangleichung (harmonization) and Rechtsvereinheitlichung (unification)
of law). Rechsangleichung is a kind of incomplete unification, when institutions of
legal orders become coordinated and more similar, but not yet unified.
Rechtsvereinheitlichung aims, ideally, for a full unification of previously differentiated
legal institutions. Id. at 21-24. In the United States, uniform laws such as the Uniform
Commercial Code and the Restatements of Law are examples of harmonization
efforts. See id. at 86-90. Furthermore, in Europe:
the founding fathers of the Community correctly foresaw that some measure of
unification, or at least of harmonization or coordination, of the members’
national laws in certain fields would be necessary, if serious distortions of the
198
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 43
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
301
the evaluation of each society is the ideal of a liberal constitutional
republic. In his analysis, Arosemena finds institutional idiosyncrasies
deviating from that ideal. Arosemena then explains those deviations, and
the explanation becomes part of a new enriched model for examining
other constitutions. This way of analyzing internal public law, or constitutional law, of the Latin American countries is Constitutional Studies’
innovation in comparative constitutional law.
Arosemena’s analysis shows some weaknesses as well. As much as
Arosemena tries to assume an empirical foundation for political institutions, he resorts to morality as the foundation of laws. How this moral
foundation relates to empirical realities in a given society remains unsaid.
In addition, Arosemena’s policy recommendations seem more effective
when dealing with institutional arrangements such as the desirability to
have two legislative chambers, than when dealing with dysfunctional legal
orders. Arosemena’s explanation that non-compliance with laws is a
result of lack of education seems unconvincing, for example. Also,
although Arosemena organized his exposition according to a schematic
structure for each legal order, on occasion his analysis becomes too
associative. For example, he justifies a comparison between the Brazilian
Constitution and European constitutions only by saying that the former is
the most liberal among the monarchic constitutions. Moreover,
Arosemena takes for granted a transnational constitutional discourse.
Additionally, Arosemena’s understanding of particular institutions is
sometimes the result of identifying pseudo-problems, and therefore leads
to his drawing erroneous policy recommendations. For example, despite
Arosemena’s familiarity with Joseph Story’s and James Kent’s commentaries on the U.S. Constitution,199 he misreads the role of the case and con-
competitive process within the Community were to be avoided. Accordingly,
they inserted into the Treaty of Rome a number of special provisions for the
approximation of members’ legislation in certain fields.
RUDOLF B. SCHLESINGER ET AL., COMPARATIVE LAW: CASES, TEXT, MATERIALS 32
(5th ed. 1988). See also James Gordley, Comparative Legal Research and Its Function
in the Development of Harmonized Law: An American Perspective, in TOWARDS UNIVERSAL LAW: TRENDS IN NATIONAL, EUROPEAN AND INTERNATIONAL LAW MAKING
53 (Nils Jareborg ed., 1995) (indicating that “[t]he harmonization that is worth having,
in my view, is the development of a common transnational legal science”). But cf.
Hein Kötz, Comparative Legal Research and Its Function in the Development of Harmonized Law. The European Perspective, in TOWARDS UNIVERSAL LAW, supra, at 27
(warning that unification could add unnecessary complexity to a legal system). For a
brief history of legal harmonization see generally GÜNTHER PHILIPPS, ERSCHEINUNGSFORMEN UND METHODEN DER PRIVATRECHTS-VEREINHEITLICHUNG 63-69 (1965).
199 Cf. JAMES KENT, COMMENTARIES ON AMERICAN LAW (New York, 3d ed.
1836); JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE
UNITED STATES (Regnery Gateway 1986) (1859).
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 44
22-JAN-04
15:28
302 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
troversy requirement in the American tradition and proposes the
introduction of a type of abstract judicial review power.200
Despite these flaws, Arosemena’s method is close to the current
method of comparative law. Nowadays, it is accepted that comparative
law method entails determining similarities between and differences
among the legal orders being compared, and an awareness of possible
functional equivalence “in assessing the significance of differences.”201
200
See generally STORY, supra note 199, at 233-239. Explaining the powers and
jurisdiction of the judiciary, Story states:
[T]he Judicial department is authorized to exercise jurisdiction to the full extent
of the Constitution, laws and treaties, of the United States, whenever any
question respecting them shall assume such a form, that the judicial power is
capable of acting upon it. When it has assumed such a form, it then becomes a
case; and then, and not till then, the judicial power attaches to it. A case, then . . .
arises, when some subject . . . is submitted to the court by a party, who asserts his
rights in the form prescribed by law.
Id. at 237. For a contemporary analysis of the case and controversy requirement see
generally GERALD GUNTHER & KAHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 2829 (13th ed. 1997). Gunther and Sullivan quote Justice Rutledge’s opinion in Rescue
Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947) regarding the policies
behind judicial restraint:
[T]he case and controversy limitation itself . . . it is one of the rules basic to the
federal system and this Court’s appropriate place within that structure. [The] policy’s ultimate foundations [lie] in all that goes to make up the unique place and
character, in our scheme, of judicial review of governmental action for
constitutionality.
Id. at 29.
201
See, e.g., Hein Kötz, Comparative Law in Germany Today, in L’AVENIR DU
DROIT COMPARÉ: UN DÉFI POUR LES JURISTES DU NOUVEAU MILLÉNAIRE 17, 19
(2000) (“German comparatists have increasingly come to incline toward the
functional approach first developed by Ernst Rabel. It is recognized generally today
that the basic methodological principle of all comparative law is that of
functionality.”) (emphasis added); John C. Reitz, How to Do Comparative Law, 46
AM. J. COMP. L. 617, 620 (1998). For an assessment of the question of method in
comparative law see DE CRUZ, supra note 33, at 228-239 (describing the comparative
method, including the test of functionality and the presumption of similarity of
results); Hiram E. Chodosh, Comparing Comparisons: In Search of Methodology, 84
IOWA L. REV. 1025, 1032-57 (1999). But see Mark Van Hoecke & Mark Warrington,
Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for
Comparative Law, 47 INT’L& COMP. L.Q. 495-96 (1998) (favoring a broader approach
to comparative law beyond rules). For Van Hoecke and Warrington, the focus of
comparative law should be “legal discourse, the way lawyers work with the law and
reason about it.” Id. at 495. Further, “[t]he more modest approach of present
comparative law limits the context to the function of the law. This functional
approach has most prominently been advocated by Zweigert and Kötz.” Id. at 495. In
addition, Van Hoecke note that “several authors have recently advocated broader
approaches to comparative law, and in doing so they attempt to move away from a
‘law as rules’ concept by using concepts such as ‘tradition’, ‘mentalité’ and ‘culture.’ ”
Id. at 496.
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 45
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
303
Moreover, the tertium comparationis is seen as essential for comparison.
This refers to a “common point of departure for the comparison, typically
either a real-life problem or an ideal. For instance, [a] comparative study
of constitutional law might ask how and to what extent each country
under study implements the ideal of the rule of law.”202 Using a tertium
comparationis one may, for example, “compare each country’s legal system with the ideal, and then . . . compare the ways in which each legal
system fulfills or departs from the ideal to investigate similarities and differences between or among them.”203 This comparative law method is
applied for the following purposes: to prepare new legislation within a
national legal order; to interpret a particular law within a national legal
order; to develop teaching materials; and to seek legal harmonization.204
There is, however, a difference between only contrasting provisions and
using functional comparative law. The first is limited to a normative
description; the second is genuine comparative law. The normative
description is deductive, while comparative law is inductive and neutral
towards national legal orders. These are the characteristics that, according to Konrad Zweigert and Hein Kötz, make comparative law correctly
and authentically international.205
When measured against this contemporary standard of comparative
law method,206 Constitutional Studies is a genuine comparative work,
202
Reitz, supra note 201, at 622.
Id. at 623. See also G.-R. de Groot & H. Schneider, Das Werturteil in Der
Rechtsvergleichung. Die Suche Nach Dem Besseren Recht, in COMPARATIBILITY AND
EVALUATION 62 (F.W. Grosheide et. al. eds., 1994) (discussing the function of tertium
comparationis); Mauro Cappelletti, In Honor of John Henry Merryman, in
COMPARATIVE AND PRIVATE INTERNATIONAL LAW: ESSAYS IN HONOR OF JOHN
HENRY MERRYMAN ON HIS SEVENTIETH BIRTHDAY 6 (David S. Clark ed., 1990)
(“What must be similar to provide the proper basis for valuable comparative research
is only the problem itself that demands a solution in terms of law.”).
204 See generally Rodolfo Sacco, One Hundred Years of Comparative Law, 75 TUL.
L. REV. 1159 (2001) (emphasizing that “comparative legal science triumphs because
we are indebted (that is to say, mankind is indebted) to its masterpieces:
harmonization, uniformity, and unification of the law.”). Cf. Mark Tushnet, The
Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, 1238 (1999)
(arguing that sometimes “judges can find licenses for looking to constitutional
experience elsewhere in interpreting the U.S. Constitution”).
205 See
1 KONRAD ZWEIGERT & HEIN KÖTZ, EINFÜHRUNG IN DIE
RECHTSVERGLEICHUNG AUF DEM GEBIETE DES PRIVATRECHTS 13, 31–41, 51 (2d ed.
1984). See also Léontin-Jean Constantinesco, Der Rechtsbegriff in der MakroVergleichung, in B80 ZEITSCHRIFT FÜR VERGLEICHENDE RECHTSWISSENSCHAFT 177
(1981); Heinz Hübner, Sinn und Möglichkeiten retrospektiver Rechtsvergleichung, in
FESTSCHRIFT FÜR GERHARD KEGEL 235 (Kegel et al. eds., 1987).
206 Cf. Andrew Harding, Comparative Public Law: A Neglected Discipline?, in
COMPARATIVE LAW IN GLOBAL PERSPECTIVE 114-15 (Ian Edge ed., 2000) (asserting
that the Zweigert and Kötz formulation of the functional method “represents a kind
of a rough authorised current version of comparative legal method”). Harding does
203
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 46
22-JAN-04
15:28
304 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
except that it does not consider functional equivalence in its analysis.
Constitutional Studies applies the comparative law method for seeking
legal harmonization. It uses the ideal of the liberal democratic republic as
tertium comparationis and, by advancing inductively, it achieves neutrality towards national legal orders.207 Arosemena arrived at these princinot see major differences between the comparative method in public and private law.
Id. at 118-19. For an assessment of the functional method see generally David J.
Gerber, Sculpting the Agenda of Comparative Law: Ernst Rabel and the Facade of
Language, in RETHINKING THE MASTERS OF COMPARATIVE LAW (Annelise Riles ed.,
2001). Gerber comments that the function/context method “developed by Ernst
Rabel for the comparative study of law has acquired the status of orthodoxy in much
of the world.” Id. at 190. Further, Gerber asserts,
[Rabel’s] methods represented an exceptionally important conceptual
breakthrough, and we dare not to forget how important they have been and
continue to be. They provide a powerful tool of analysis that has been used to
create an extensive and invaluable body of comparative law materials dealing
with how legal systems treat specific problems.
Id. at 207. For a critical assessment of the functionalist method see Vivian Grosswald
Curran, Cultural Immersion, Difference and Categories in U.S. Comparative Law, in
COMPARATIVE LAW. AN INTRODUCTION 7 (Vivian Grosswald Curran ed., 2002) Curran notes that “[t]he functionalist approach, developed by Ernst Rabel, has been the
hallmark of contemporary comparative legal analysis.” Id. at 14 n.76. She also indicates that functionalism “operates at the most manifest level of society and allows a
maximum of latitude for deemphasizing the differences in legal mentality that frequently underlie practical resolutions to legal questions.” Id. at 11. It also “tends to
disguise the fact that a given question will itself mean some thing different in different
legal cultures.” Id. See also Pierre Legrand, John Henry Merryman and Comparative
Legal Studies: A Dialogue, 47 AM. J. COMP. L. 3 (1999). In response to criticism of
rule comparison, Merryman said: “It seems so obvious that comparison based on
statements of rules of law, which is the dominant mode of comparative law scholarship, is a relatively trivial kind of enterprise.” Id. at 4. Merryman suggests that the
alternatives are to compare legal cultures and “the underlying reality of the legal system, the institutions, actors, and processes.” Id. at 25.
207 Cf. Karl-Peter Sommermann, Die Bedeutung der Rechtsvergleichung für die
Fortentwicklung des Staats und Verwaltungsrechts in Europa, Heft 24 DIE
ÖFFENTLICHE VERWALTUNG: ZEITSCHRIFT FÜR ÖFFENTLICHES RECHT UND
VERWALTUNGSWISSENSCHAFT 1017, 1017 (1999). Sommermann indicates that
comparison is only possible when the comparatist takes the role of external observer:
“At any rate, the comparison strictu sensu is only possible, when the comparatist first
steps out of his/her familiar system and takes the role of an external observers in
relation to the compared legal orders.” Id. (author translation). See also Grosswald
Curran, supra note 206, at 118. Curran states that:
[The contribution that American legal theories such as feminist and critical race
theory had made] to the constitution of our legal system stem in part from the
greater facility than outside observer may have in detecting features of a legal
culture so entrenched and unquestioned as to be taken for granted by the
insiders. Noting to signal the triumphs of the exiled, Edward Saı̈d has referred to
“an ascetic code of willed homelessness,” and Julia Kristeva has evoked exile as
an opportunity “to make love with absence,” and as a “weightlessness in the
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 47
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
305
ples constructing his method on findings from Tocqueville, Hildreth, Mill,
Laboulaye, and Colmeiro. To understand the significance of Constitutional Studies in the history of comparative constitutional law, it is necessary at this point to analyze Constitutional Studies’ reception. This is the
purpose of the article’s next section.
IV. READINGS
OF
CONSTITUTIONAL STUDIES
This part describes how Constitutional Studies was received. It also contextualizes Constitutional Studies, showing that its lineage belongs to
comparative constitutional compilations that flourished in nineteenth
century Europe.
A. Reviewing Constitutional Studies
Despite its three editions, Constitutional Studies had hardly any
reviews. F. R. Dareste and P. Dareste mentioned Constitutional Studies in
their two-volume constitutional compilation of 1883, Les Constitutions
Modernes, Recueil des Constitutions en Vigueur dans les divers États
d’Europe, d’Amérique et du Monde Civilisé.208 In the general bibliography listing previous constitutional compilations preceding their work,
these authors referred to Constitutional Studies as follows: “Collection
contenant tous les textes en vigueur, avec notices et commentaires théoriques” (Compilation of constitutions containing all the [constitutional]
texts in force, with notices and theoretical commentaries).209 From this
listing it is safe to say that Dareste and Dareste considered Constitutional
Studies to belong to a lineage of comparative constitutional compilations.
In addition, it is likely that Dareste and Dareste, who did not hold back
evaluations of their sources,210 considered Arosemena’s scholarship reliable because they took the constitutional texts of Perú and Uruguay from
Constitutional Studies for their compilation.211 Likewise, in their cursory
description of the compilations that mentioned whether the works contain historical notices or observations, they characterize only Constitutional Studies as containing theoretical commentaries. Dareste and
infinity of cultures and legacies [that] gives [the exile] the extravagant ease to
innovate.” This perhaps is the condition to which the comparativist should aspire.
Id.
208 1 FRANÇOIS R. DARESTE & P. DARESTE, LES CONSTITUTIONS MODERNES,
RECUEIL DES CONSTITUTIONS EN VIGUEUR DANS LES DIVERS ÉTATS D’EUROPE,
D’AMÉRIQUE ET DU MONDE CIVILISÉ. TRADUITES SUR LES TEXTES ET
ACCOMPAGNÉES DE NOTICES HISTORIQUES ET DE NOTES EXPLICATIVES xxiv (2d ed.,
Augustin Challamel 1891).
209 Id.
210 See id. (stating that the translations of some constitutions in M. E. LAFERRIÈRE
& M. A. BATBIE, LES CONSTITUTIONS D’EUROPE ET D’AMÉRIQUE (1869), contained
several inaccuracies).
211 See 2 F. R. DARESTE & P. DARESTE, supra note 208, at 510, 515, 547-48.
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 48
22-JAN-04
15:28
306 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
Dareste did not elaborate on this characteristic; nonetheless, this characterization could designate the general and particular observations in
Arosemena’s work as containing analyses of certain institutions and policy recommendations for constitutional reform. The typical compilation
listed by Dareste and Dareste contained only the constitution with a brief
historical introduction.
In his 1887 book entitled Estúdios Constitucionales,212 another commentator of Constitutional Studies, Francisco Bauza, dedicated twentythree pages to a critique of the 1878 edition of Arosemena’s book. Bauza,
limiting his criticism to the chapter about Uruguay, considered Constitutional Studies superficial.213 Bauza classifies Arosemena among what he
calls “political prophets,” yet he distinguishes Arosemena from them
because Arosemena is an “honest prophet.”214 After reproducing
Arosemena’s opinion that Uruguay was a country created for diplomatic
reasons,215 Bauza argues that, although Arosemena’s comment is relatively sound, the Uruguayan could not care less about geography and
politics.216 According to Bauza, Arosemena has a mistaken notion about
the history of Uruguay because Arosemena refers to it as a “small republic dominated by foreign powers.”217 After establishing Arosemena’s
inaccurate notion about Uruguay’s history, Bauza then systematically
criticizes Arosemena’s general and particular observations about the
Uruguayan Constitution. For instance, Bauza counters Arosemena’s critique by arguing that it is appropriate for the Uruguayan Constitution to
recognize an official religion. According to Bauza, if a constitution
accepts the freedom of all religions, it would be the equivalent of proclaiming atheism.218 Where Arosemena praised articles 25 and 31 of the
Uruguayan Constitution, which restrict diplomats, high army officers’,
and Church members’ eligibility for public office, Bauza saw these articles as censurable. In short, by derisively calling Arosemena a “political
prophet,” Bauza suggests that Arosemena is speculating about the future
of the Latin American countries.
212
FRANCISCO BAUZA, ESTÚDIOS CONSTITUCIONALES (1887).
Cf. BASIL S. MARKESINIS, FOREIGN LAW AND COMPARATIVE METHODOLOGY:
A SUBJECT AND A THESIS 45 (1997) (stating in a different context that the comparatist
lawyer must endure criticism both from his countrymen for being disloyal “as his
criticisms of their law strike closer to the bone,” and from his foreign collegues “who
may treat him—often, but not always, rightly—as a superficial outside observer of
their systems”).
214 BAUZA, supra note 212, at 426.
215 CONSTITUTIONAL STUDIES, supra note 1, at para. 356 (“Uruguay is a country
born out of the transaction of two powers that disputed over it, and the English
intervention that sought only peace and markets.”).
216 BAUZA, supra note 212, at 426-28.
217 Id. at 429-31.
218 Id. at 431, 434-435.
213
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 49
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
307
Yet, Bauza’s criticism against Arosemena’s commentaries about Uruguay is unconvincing. Contemporary commentators from Uruguay
acknowledge the diplomatic influence in establishing the Uruguayan
state, concluding that the Uruguayan Constitution of 1830 created a state
in name only because the Constitution did not take into consideration the
socio-economic conditions of Uruguay.219 Moreover, Arosemena’s General Observations in the chapter on Uruguay in Constitutional Studies has
twelve paragraphs, of which ten are an extensive quotation from a manifest explaining the Constitution of Uruguay written by Uruguayan members of the 1830 constitutional convention.220 After this extensive
quotation, Arosemena says that the findings of that manifest about the
anarchy that follows from the disrespect of a constitution are applicable
not only to Uruguay, but to almost all Latin American countries. Despite
well-drafted constitutions, the political reality has been one dominated by
instability. Instead of accepting this state of affairs, Arosemena argues for
the need to devise appropriate constitutional arrangements for educating
the population to respect a constitutional order, according to the circumstances of each society.221 Moreover, Bauza’s critique of Arosemena’s
policy recommendations shows more of an ideological difference between
the two about the relationship between church and state than a sound
critique. Arosemena praised the Uruguayan Constitution because it does
not prohibit the practice of religions other than Catholicism. He objected,
however, to the fact that the Uruguayan Constitution made Catholicism
the official religion of the state, giving to Catholicism a preferential protection.222 After analyzing the relation between church and state historically,223 Arosemena insists on their separation.224 Bauza’s argument that
to proclaim freedom of religion would be equivalent to proclaiming atheism misses Arosemena’s point. Nonetheless, Bauza’s criticism exposes the
219
For an interpretation of the history of the Uruguay by twentieth century
Uruguayan scholars see Julio Barreiro, Die Entwicklung des Verfassungsrechts von
Uruguay, in 20 JAHRBUCH DES ÖFFENTLICHEN RECHTS DER GEGENWART 573-616
(1971). See generally HÉCTOR GROSS ESPIELL, LAS CONSTITUCIONES DE URUGUAY
(2d. ed. 1978).
220 CONSTITUTIONAL STUDIES, supra note 1, at paras. 361-72.
221 See id. at paras. 371-72.
222 See id. at paras. 373-75. Arosemena notes that the Constitution of Uruguay, as
well as the constitutions of Brazil, Chile, Argentina and the constitutions of most
other Catholic countries, except those of Belgium and Colombia, gave special
protection to Roman Catholicism, the same way that Great Britain protected “la
relijion episcopal.” Id. at para. 375.
223 See id. 376-84. In this historical account Arosemena quotes COLMEIRO, supra
note 192, at 190, extensively.
224 CONSTITUTIONAL STUDIES, supra note 1, at para. 384 (“A pure, truthful and
self-confident, does not need help from the government. A legitimate government,
just and protector of liberty, does not need more to gain the love and respect of its
citizens.”).
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 50
22-JAN-04
15:28
308 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
difficulty already mentioned about Arosemena’s exposition. Arosemena
assumed a transnational constitutional discourse. At the transnational
level of the discourse, Arosemena’s disquisitions about separation of
church and state and about religious freedom are plausible. But, what was
the understanding of the Uruguayan legal community at that time? Was
Bauza’s critique equating religious freedom with proclaiming atheism
only faulty logic or was it a dominant opinion of his legal community? Is
Bauza’s interpretation plausible in light of article 134 of the Uruguayan
Constitution, which reserves the private actions of men only to God, and
exempts those actions that are not “against the public order nor prejudicial to others” from the authority of the state magistrates? Could it be
interpreted that the recognition of Catholicism as the state religion is part
of the public order and, therefore, even some “private action of the men”
that affects the Catholic religion would be subject to the “authority of the
magistrates”?225 At any rate, it must be kept in mind that Arosemena
used Uruguayan primary sources for his analysis, and that he was making
suggestions for constitutional reform to achieve what he considered the
next stage in development toward a liberal constitutional republic. Moreover, his suggestions about separation between church and state are not
limited to Uruguay, but are extended to all constitutions that favored a
particular religion. Thus, Bauza’s critique seems unwarranted.
Constitutional Studies is still mentioned as an important contribution to
the legal historiography of Panama and Colombia, albeit for different
reasons. In Panama, Constitutional Studies is mentioned as the major
work of the founding father of the Panamanian nationality.226 Panamanian scholarship about Arosemena has been concerned with emphasizing
nationalistic features of his work, and has had difficulty reconciling that
with a universal approach from an author who identifies himself in Constitutional Studies as a “lawyer from Colombia and Chile.”227 Indeed,
Panamanian scholars have aggrandized national heroes, offering a different interpretation about the origin of Panama than the one that empha225
See CONST. OF URUGUAY 1830 art. 134.
See Rodrigo Miró, Justo Arosemena, Intérprete y Vocero de la Nacionalidad, in
SIGNIFICACIÓN HISTÓRICA Y FILOSÓFICA DE JUSTO AROSEMENA 11-17 (1958)
(commenting that Justo Arosemena is caught in a net of eulogistic comments, without
being thoroughly studied, and noting that Arosemena’s though remains unexamined,
although he is a spiritual and intellectual national treasure). See also MÉNDEZ
PEREIRA, supra note 36, at 345-46; MOSCOTE & ARCE, supra note 36, at 359-60, 36566.
227 See, e.g., RICAURTE SOLER, PENSAMIENTO PANAMEÑO Y CONCEPCIÓN DE LA
NACIONALIDAD DURANTE EL SIGLO XIX 68-74 (1954) (considering Constitutional
Studies less interpretative than other works by Arosemena after only examining its
introduction to infer a concept of history); Nils Castro, Introduction to JUSTO
AROSEMENA, PATRIA Y FEDERACIÓN 37-8 (Nils Castro ed., 1982) (dismissing
Constitutional Studies as an example of the most that the liberal ideology could have
produced at that time).
226
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 51
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
309
sizes the United States’ interest in the building of the Panama Canal.228
Arosemena is one of the national heroes. The two biographies about
Arosemena were written on the occasion of a competition organized by
the Panamanian National Assembly in 1917.229 These books are part of
what the Panamanian historian Carlos Manuel Gasteazoro calls “patriotic
works,”230 because they were intended to demonstrate the existence of a
pre-1903 Panamanian national identity. In this context, it is perhaps
understandable why, except for some chapters,231 Constitutional Studies
has never been reprinted in the twentieth century, despite being considered Arosemena’s most important work. Conversely, Arosemena’s essay
proposing the creation of a Panamanian Federal State within the Republic of Columbia, which was presented before the Colombian Senate in
1855, has been reprinted six times.232 Within the paradigm of justifying
228
For an account of the theory that Panama was created solely as a result of U.S.
interest in the Panama Canal see SOL M. LINOWITZ & MARTIN MAYER, THE
BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY 6970 (1994) (stating that Cromwell, a lawyer, “would put together the plan that led to
the surgery on Colombia that produced Panama and the agreement to build a Panama
Canal”). For a more rigorous historical account see DAVID MCCULLOUGH, THE PATH
BETWEEN THE SEAS: THE CREATION OF THE PANAMA CANAL 1870-1914, at 361-86
(1977). McCullough notes:
[Even] if American sea power had settled the issue on the instant, made Panama
an immediate fait accompli, it is equally obvious that belief in an American
involvement far in excess of reality was for the actual conspirators the vital
sustaining force: what Amador and his compatriots believed the situation to be—
their mistaken impressions as a result of the arrival of the Nashville—was far
more important than were the facts of the situation.
Id. at 385.
229 See Carlos Manuel Gasteazoro, Presentación Historiográfica de Octavio
Méndez Pereira, in MÉNDEZ PEREIRA, supra note 36, at xviii. MÉNDEZ PEREIRA
participated with JUSTO AROSEMENA. See supra note 36. Also prepared on the
occasion of that competition was the biography by MOSCOTE & ARCE, supra note 36.
The first general history of Panama emphasizing the distinct Panamanian nationality
from the Colombian nationality was also prepared around this time. Cf. JUAN B. SOSA
& ENRIQUE J. ARCE, COMPENDIO DE HISTORIA DE PANAMÁ (Editorial Universitaria
1977) (1911).
230 Carlos Manuel Gasteazoro, Presentación Historiográfica de Octavio Méndez
Pereira, in MÉNDEZ PEREIRA, supra note 36, at xix-xx.
231 JUSTO AROSEMENA, FUNDACIÓN DE LA NACIONALIDAD PANAMEÑA xvii
(Ricaurte Soler, ed., 1982) (this compilation includes only the historical part of some
chapters of Constitutional Studies).
232 See Rodrigo Miró, Alcance a las Ediciones Panameñas de ‘El Estado Federal’ de
don Justo Arosemena, in 12 LOTERÍA 47 (2a época 1967). See also Argelia Tello
Burgos, Estudio Introductorio to ESCRITOS DE JUSTO AROSEMENA lii (1985). Burgos
explains, in her introductory study, that Justo Arosemena, as member of the
Colombian Representative Legislative Chamber in 1852 and of the Senate in 18531855, “promoted from Bogotá with enthusiasm and perseverance federalism for
Panama, as a solution to weak administration and particularly to guard against foreign
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 52
22-JAN-04
15:28
310 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
the Panamanian official national history, Constitutional Studies has been
difficult to explain. Ricaurte Soler, one of the experts on Arosemena,
talks about the paradox that the main theorist of the Panamanian nationality would be also one of the key theorists of the Hispano-American
nationality.233
In Colombia, Constitutional Studies is mentioned within the lineage of
Colombian constitutional law treatises. For instance, A. J. Cadavid, in his
prologue to a book entitled Apuntamientos de Derecho Constitutional,
which reviews the development of constitutional law in Colombia,
describes Constitutional Studies as a comparative study written by a person of talent and wisdom.234 Nevertheless, he considered Constitutional
Studies “not so deep” given the scope of the subject matter, and warned
the reader to take into account the recent constitutional developments in
Latin America.235 Carlos Restrepo Piedrahita considered Constitutional
Studies unique among the Colombian constitutional treatises because it
used comparative constitutional law.236 Restrepo Piedrahita mentioned
the influence of Tocqueville on Constitutional Studies and Arosemena’s
utopian ideas regarding the Latin American integration. Restrepo
Piedrahita suggested that these utopian ideas could explain Arosemena’s
comparative efforts.237 Examining Arosemena’s comments about the
Colombian Constitution of 1863, of which Arosemena was co-author as a
member of the Constitutional Convention of Rio Negro, Restrepo
Piedrahita stressed Arosemena’s opinion favoring judicial review over a
legislative constitutional review to assure the supremacy of the Constitution, saying: “A history of the evolution of this important Colombian
threats . . . . [Arosemena] presented his already known project of constitutional
amendment erecting a Federal State in Panama.” Id. at lii and liii. For an analysis of
the argument in the Estado Federal, see MOSCOTE & ARCE, supra note 36, at 231-42.
In 1855, Panama was erected as a Federal State within Colombia through an
amendment to the Colombian Constitution of 1853. See POMBO & GUERRA, supra
note 44, at 1044.
233 See Ricaurte Soler, Prólogo to JUSTO AROSEMENA, FUNDACIÓN DE LA
NACIONALIDAD PANAMEÑA, supra note 231, at xvii. Likewise, the only book written
about Arosemena’s constitutional thought in Panama is by Adolfo Benedetti, who
based his analysis on this patriotic literature. Without giving any reasons, Benedetti
asserts that Constitutional Studies is a magnificent and original work. Cf. ADOLFO A.
BENEDETTI, EL PENSAMIENTO CONSTITUCIONAL DE JUSTO AROSEMENA 4, 140 (1962)
(considering Constitutional Studies merely an application of a positivistic philosophy).
234 See A.J. Cadavid, Foreword to JOSÉ VICENTE CONCHA, APUNTAMIENTOS DE
DERECHO CONSTITUCIONAL PARA USO DE LOS ESTUDIANTES DE DERECHO 11 (3d ed.
1923).
235 Id. at 11-12.
236 See Restrepo Piedrahita, supra note 114, at 88.
237 Id. at 90-91.
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 53
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
311
institution [of constitutional review] should rescue and appreciate in its
full dimension the creative value of Arosemena’s ideas.”238
On the subject of constitutional review, Arosemena deplored that,
according to the Colombian Constitution, unconstitutional acts violating
the sovereignty of the member states by the Colombian Federal Congress
and by the executive could be annulled by a majority of the state legislatures. Arosemena argues that the state legislatures should not have this
power for constitutional review because they are an interested party and
this function is judicial in nature; therefore, it should be the responsibility
of the Supreme Court. In addition, Arosemena warns that the Columbian
Constitution did not establish the annulment of legislative and executive
national acts. Arosemena points to the example of American judicial
review, suggesting that it should be adopted for Colombia. He did not
see, however, why the competence of the American Supreme Court is
limited by the “case and controversy requirement” and suggests that the
Supreme Court should have the power of constitutional adjudication
even when that requirement is not fulfilled. It could happen, insists
Arosemena, that a law plainly opposed to the fundamental institutions of
the United States could be passed.239 At any rate, Arosemena concludes
that judicial review should be contemplated in every legal order to ensure
the supremacy of the constitution.240 Regardless of the merits of
Arosemena’s view, his comments about the case and controversy requirement, as mentioned before, resulted from a partial understanding of
American judicial review.241
Lastly, Restrepo Piedrahita indicates that constitutional law as a specialized field progressed admirably in Colombia during the nineteenth
century with regard to its style of exposition and its conceptual precision.
Restrepo Piedrahita says that in Colombian constitutional law history
“Arosemena—together with González and De León [other nineteenth
century Colombian constitutional scholars]—will not be surpassed scientifically.”242 Although Restrepo Piedrahita did not elaborate further on
this, it could imply that Arosemena, González, and De León made definitive contributions in the quest for developing categories and methods for
the specialization of constitutional law in nineteenth century Colombia.
In summary, analyses of Constitutional Studies have been limited. In
the nineteenth century, Dareste and Dareste correctly classified Constitutional Studies in a lineage of comparative constitutional works, while
Bauza dismissed it as a superficial work. In the twentieth century, scholars still mention Constitutional Studies as an important contribution to
238
239
240
241
242
Id. at 92-93, 95 n.145.
CONSTITUTIONAL STUDIES, supra note 1, at paras. 1065-68.
See id. at para. 1068.
See supra text accompanying note 197.
See Restrepo Piedrahita, supra note 114, at 100.
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 54
22-JAN-04
15:28
312 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
comparative constitutional law,243 but do not elaborate much on this
assertion. When scholars examined Constitutional Studies partially, as
Bauza and Cadavid did, they saw an unsatisfactory work. Certainly, Constitutional Studies exhibits shortcomings. For instance, in some cases
Arosemena’s criticisms of constitutional provisions downplay other plausible interpretations.244 Likewise, Arosemena’s utopian and theoretical
assumptions can be a matter of debate. More importantly, some of
Arosemena’s comparative observations are too associative and unsystematic.245 Nonetheless, a criticism based only on the analysis of some
chapters of Constitutional Studies is unbalanced. Arosemena’s work
attempted to improve the despairing state of democracy in Latin America
by making concrete constitutional policy recommendations. As this article argues, Constitutional Studies’ main contribution lies in how
Arosemena approached the task of analyzing the Latin American orders,
using features of a comparative constitutional law method very similar to
current standards. Only by reading Constitutional Studies as a whole and
in context with other similar works can its contribution be appreciated.
B. Constitutional Studies and the Rise of Comparative Constitutional
Law
A cursory comparison of some other works with Constitutional Studies
shows that, as a constitutional compilation, Constitutional Studies participated in the rise of comparative constitutional law of the nineteenth century.246 To be sure, since jurisprudence has existed, the method of
243 Ernesto de la Torre Villar and Jorge Garcı́a Laguardia mention Arosemena as
a precursor of their comparative work, and use Constitutional Studies to explain the
composition of the Senate in the 1824 Federal Constitution of Central America.
ERNESTO DE LA TORRE VILLAR & JORGE MARIO GARCÍA LAGUARDIA,
DESARROLLO HISTÓRICO DEL CONSTITUCIONALISMO HISPANOAMERICANO 143-44
(1976). De la Torre Villar and Garcı́a Laguardia warn that their work is neither a
complete history of Hispano American constitutionalism nor a detailed study of the
Constitutions. See id. at Advertencia. Rather, their work is a sketch of constitutional
developments in Mexico, Central American, and some Caribbean countries that
attempts to determine general trends. Then, in the sense that Arosemena’s work can
be also read as an effort to outline general constitutional developments in Latin
America, de la Torre Villar and Garcı́a Laguardia’s comments are correct. Their
work, however, neither seeks harmonization of the Latin American legal orders nor
formulates policy recommendations.
244 See, e.g., CONSTITUTIONAL STUDIES, supra note 1, at paras. 108-13 (analyzing
individual rights in the Brazilian Constitution).
245 For instance, although using an analysis of the Spanish Constitution of Cádiz to
show that the Constitution of Brazil is the most progressive among the monarchical
constitutions seems justifiable from an associative point of view, it does not follow a
strict line of argument. See id. at paras. 82-85.
246 Cf. David S. Clark, Nothing New in 2000? Comparative Law in 1900 and Today,
75 TUL. L. REV. 871, at 873 (2001) (commenting that in the nineteenth century
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 55
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
313
comparison has been used.247 Nevertheless, the focus here is on works
that are roughly contemporaneous with the emergence of the modern
constitutionalism, and particularly on those works that deal with a legal
community. Although Dareste and Dareste mentioned its second edition
of 1878, Constitutional Studies was first published in 1870. Therefore, this
section examines some works from around 1800 to show the lineage from
which Constitutional Studies originated.
One of the most important forerunners of comparative constitutional
law before 1800 was Gottfried Achenwall, author of the 1749 work Staatsverfassungen der heutigen vornehmeste Europäischen Reiche und Völker
im Grundrisse.248 Achenwall proposed Statistik as a theory—at once
empirical and normative—to describe a constitution. His exposition folcomparative law works were published in Europe and America mainly by French and
German scholars). See also DE CRUZ, supra note 33, at 14. De Cruz indicates that
“[t]he impetus for the modern methods of comparative law came around the middle
of the nineteenth century, when the intellectual movement we now associate with
Evolution and Darwinism caught the imagination of intellectuals and scientists across
Europe.” Id. Further, he notes that “only in the second half of the nineteenth century
comparative law gained recognition as ‘an approved method for the study of different
legal systems.’ ” Id. See also Christian Starck, Rechtsvergleichung Im Öffentlichen
Recht, 21 JURISTEN ZEITUNG 1021, 1021-1023 (1997) (stating that the nineteenth
century was a century of comparison and that nineteenth century goals and methods
are also ours). But see Sommermann, supra note 207, at 1018-19 (pointing out that the
comparative method of the nineteenth century was mostly deductive).
247 See RENÉ DAVID, EINFÜHRUNG IN DIE GRObEN RECHTSSYSTEME DER
GEGENWART. RECHTSVERGLEICHUNG 1-2 (Günther Grasmann trans. 1966). See also
2 ZWEIGERT & KÖTZ, EINFÜHRUNG IN DIE RECHTSVERGLEICHUNG AUF DEM
GEBIETE DES PRIVATRECHTS 64 (2d ed. 1984); Sommermann, supra note 207, at 102021 (mentioning examples of comparative law works for rechtspolitische Zwecke such
as Montesquieu’s 1748 work De L’esprit des lois and John Locke’s 1690 work The
Second Treatise of Government); Robert Launay, Montesquieu: The Specter of
Despotism and the Origins of Comparative Law, in RETHINKING THE MASTERS OF
COMPARATIVE LAW (Annelise Riles ed., 2001). Launay argues that “[a] brief
comparison of Montesquieu’s approach to those of his immediate as well as his
somewhat more distant predecessors sheds light on his choice to resurrect, rather than
to invent, a comparative stance.” Id. at 23. Further, Montesquieu’s The Spirit of Laws
shows elements that “were directly formulated by the sixteenth century French
thinkers: the doctrine of legal relativism; the historical quest for the origins of the
French monarchy and its legal basis; and the comparative study of legal and social
institutions, explicitly including those of non-European.” Id. at 24. See also VICKI C.
JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW v (1999)
(indicating that “[c]omparative constitutional law is both a very old and a relatively
new subject”). See generally LÉONTIN-JEAN CONSTANTINESCO, RECHTSVERGLEICHUNG. EINFÜHRUNG IN DIE RECHTSVERGLEICHUNG (1971) ( offering a brief
history of comparative law).
248 GOTTFRIED ACHENWALL, STAATSVERFASSUNG DER HEUTIGEN VORNEHMESTE
EUROPÄISCHEN REICHE UND VÖLKER IM GRUNDRISSE (5th ed. 1768) (1749).
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 56
22-JAN-04
15:28
314 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
lows a regular scheme to describe each country, and analyzes, for example, Spain, Portugal, France, Great Britain, Russia, Denmark, and
Sweden.249 Achenwall’s work includes empirical, historical, pragmatic,
cultural, and comparative components in the analysis of the law.250
Likewise, Johann Heinrich Gottlieb von Justi, author of the 1762 work
Vergleichungen der Europäischen mit den Asiatischen und andern
vermeintlich barbarischen Regierungen, was an important forerunner to
Arosemena. .251 With the purpose of determining, through comparison,
the best institutions, Gottlieb von Justi questions the prejudiced distinction between civilized and barbaric nations.252 His work is divided into
three sections. The first addresses the monarchy, the second addresses the
administration of justice, and the third addresses the monarch’s education. Gottlieb von Justi’s book finishes with a description of the Inca
Empire, but without comparative observations, as he himself recognized.253 M. De La Croix, author of the 1791-1793 work Constitutions des
Principaux Etats de L’Europe et des Etats-Unidos de L’Amérique, was
another precursor of nineteenth century constitutional compilations.254
De La Croix examined, for example, ancient Greek and Roman governments, as well as the constitutions of Poland, Sweden, Holland, Great
Britain, the United States of America, Spain, Portugal, and France. His
exposition contains historical observations and general commentaries
about the analyzed legal orders.
Constitutional compilations became more common in the nineteenth
century, the time to which the beginning of modern comparative law is
dated.255 For instance, the 1821-1823 Collection des Constitutions, Chartes
249 Cf. also Fritz Münch, Enführung in die Verfassungsvergleichung 33
ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VÖLKERRECHT 128
(1973) (discussing Achenwall’s work).
250 See 1 MICHAEL STOLLEIS, GESCHICHTE DES ÖFFENTLICHEN RECHTS IN
DEUTSCHLAND–REICHSPUBLIZIZSTIK UND POLICEYWISSENSCHAFT 1600-1800, 316-317
(1988).
251 JOHANN
HEINRICH GOTTLIEB VON JUSTI, VERGLEICHUNGEN DER
EUROPÄISCHEN MIT DEN ASIATISCHEN UND ANDERN VERMEINTLICH BARBARISCHEN
REGIERUNGEN (1978) (1762).
252 See id. at 2-4.
253 See id. at 493-94. Gottlieb von Justi states that he did not make any
comparative analyses in the case of Peru and the Incas and that he took the materials
about the Incas from Garcilaso de La Vega. Id. at 497. See also 1 STOLLEIS,
GESCHICHTE DES ÖFFENTLICHEN RECHTS IN DEUTSCHLAND, supra note 250, at 379-82
(commenting that Gottlieb von Justi’s contribution consisted of his differentiation
between state and society and administration and administrative law).
254 M. DE LA CROIX, 1 CONSTITUTIONS DES PRINCIPAUX ETATS DE L’EUROPE ET
DES ETATS-UNIDOS DE L’AMÉRIQUE (2d. ed. 1791).
255 See ZWEIGERT & KÖTZ, supra note 205, at 60. See also DAVID, supra note 247,
at 2; STOLLEIS, NATIONALITÄT UND INTERNATIONALITÄT: RECHTSVERGLEICHUNG IM
ÖFFENTLICHEN RECHT DES 19. JAHRHUNDERTS, supra note 172, at 5-6, 8; Walther
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 57
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
315
et Lois Fondamentales des Peuples de L’Europe et des deux Amérique;
avec des Précis Offrant l’Histoire des Libertés et Institutions Politiques
chez les Nations Modernes by P. A. Dufau, J. B. Duvergier, and J. Guadet
was prepared to provide legislators and publicists with the sources of
political institutions of all civilized nations as well as to provide citizens
the history of their freedoms.256 After discussing Aristotle, Montesquieu,
and Domat’s concept of constitution, the authors emphasize the notion of
fundamental political laws defining a political organization. In addition to
European and American state constitutions, this work includes the constitutions of the following South American countries: Buenos Aires (Constitution des Provinces Unies de L’Amérique du Sud), Venezuela, and
Colombia. Those states’ constitutions are preceded by a historical introduction entitled Amérique Mériodionale, Précis des Révolutions de
L’Amérique Mériodinale, which addresses conquest, colonization, and the
South American independence revolutions.257 The 1832-1833 work Die
Europäischen Verfassungen seit dem Jahre 1789 bis auf die neueste Zeit
–mit geschitlichen Erläuterungen und Einleitungen by Karl Heinrich
Ludgwing Pölitz also dated from this time.258 In his compilation, Pölitz
mentions De La Croix’s and Dufau’s works as precursors.259 Pölitz
includes European constitutions to increase the comparative law sources
enriching the constitutional law of each state. Pölitz also said that he had
planned a volume including the Central and South American constituHug, The History of Comparative Law, 45 HARV. L. REV. 1027, 1069 (1932) (stating
that “the first half of the nineteenth century witnessed the beginning of studies in
comparative law on a larger scale”); ADOLF F. SCHNITZER, VERGLEICHENDE
RECHTSLEHRE 7 (2d ed. 1961) (“Die Vergleichung hat sich als besonderer Zweig in
der Rechtswissenschaft erst im XIX. Jahrhundert entwickelt.”).
256 P. A. DUFAU ET AL., COLLECTION DES CONSTITUTIONS, CHARTES ET LOIS
FONDAMENTALES DES PEUPLES DE L’EUROPE ET DES DEUX AMÉRIQUE: AVEC DES
PRÉCIS OFFRANT L’HISTOIRE DES LIBERTÉS ET INSTITUTIONS POLITIQUES CHEZ LES
NATIONS MODERNES (1821).
257 See 6 P. A. DUFAU ET AL., COLLECTION DES CONSTITUTIONS, CHARTES ET
LOIS FONDAMENTALES DES PEUPLES DE L’EUROPE ET DES DEUX AMÉRIQUE; AVEC
DES PRÉCIS OFFRANT L’HISTOIRE DES LIBERTÉS ET INSTITUTIONS POLITIQUES CHEZ
LES NATIONS MODERNES 235-40 (Chez Béchet Ainé, Libraire-Éditeur 1823).
258 1 KARL HEINRICH LUDWIG PÖLITZ, DIE EUROPÄISCHEN VERFASSUNGEN SEIT
DEM JAHRE 1789 BIS AUF DIE NEUESTE ZEIT—MIT GESCHITLICHEN ERLÄUTERUNGEN
UND EINLEITUNGEN (2d ed. 1832). Pölitz’s works appeared with the initial
constitutional debates in Europe. See 2 MICHAEL STOLLEIS, GESCHICHTE DES
ÖFFENTLICHEN RECHTS IN DEUTSCHLAND—STAATSRECHTSLEHRE UND VERWALTUNGSWISSENSCHAFT 1800-1914 101-02, 165-66 (1992). These kind of constitutional
compilations appeared also around the initial constitutional debates in South
America. See, e.g., FLORENTINO GONZÁLEZ, CONSTITUCIONES DE ALGUNOS DE LOS
ESTADOS DE LA UNION AMERICANA (1872) (compiling some American state constitutions to support the constitutional debate in South America).
259 See PÖLITZ, supra note 258, at xi.
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 58
22-JAN-04
15:28
316 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
tions.260 Similarly, Les Constitutions d’Europe et d’Amérique, written by
M. E. Laferrière and M. A. Batbie in 1869, is another good example of a
nineteenth century constitutional compilation.261 Laferrière and Batbie’s
work does not have historical observations or commentaries, but contains
only the constitutional texts. From South America, it only includes the
Brazilian Constitution.
In synthesis, Arosemena’s work shares characteristics with the works of
Achenwall, De La Croix, Dufau, Pölitz, and Lafarrière and Batbie: the
inclusion of constitutional histories; consideration of cultural, political,
and economical factors in a given country; and, in some cases, compilations made in an effort to find out what the best government is. Several
works before Constitutional Studies included Latin American constitutions. Specifically, Gottlieb von Justi addressed the Inca Monarchy;
Dufau included some South American constitutions; Pölitz had at least
planned to include a volume dedicated to Central and South America;
and Lafarrière and Batbie included the Constitution of Brazil.262 Yet,
Arosemena’s Constitutional Studies offers a complete compilation of
Latin American constitutional texts and is the first to propose a Latin
American legal family. Moreover, in addition to presenting a historical
account for each constitution, Arosemena makes systematically comparative observations for constitutional policy-making. Dareste and Dareste
perceived this particularity of Arosemena’s work when they attributed
theoretical commentaries (commentaire théorique) to Constitutional
Studies.
260
See Id. at xiv.
M. E. LAFERRIÈRE & M. A. BATBIE, LES CONSTITUTIONS D’EUROPE ET
D’AMÉRIQUE (1869).
262 There are also two previous works that make descriptive comparative remarks
about Hispano-American constitutions. The first is Vicente Rocafuerte, An Analysis
of the First Constitutions of America, 72 REVISTA DE HISTORIA DE AMÉRICA 419
(Jaime E. Rodriguez, trans. 1972) (1825-1827). Rocafuerte published his study in
several articles in the newspaper Ocio de los Españoles Emigrados. He wanted to
show the superiority of the federalism and political ideas of the Spaniards of both
worlds. He took the Constitution of Cádiz (Spain) and contrasted its provisions with
the provisions of the constitutions of Mexico, Guatemala, Gran Colombia, Perú, and
Chile. Occasionally, he made commentaries. His work is neither a constitutional
compilation nor a properly comparative work. Its organization was determined by the
subject matter of the Cádiz Constitution; therefore, Rocafuerte reached only a limited
descriptive level in contrasting constitutional provisions. The other is the JUAN
BAUTISTA ALBERDI, BASES Y PUNTO DE PARTIDA PARA LA ORGANIZACIÓN
POLÍTICA DE LA REPÚBLICA DE ARGENTINA (Impr. del Mercurio 1852). Although
Alberdi made comparative constitutional observations in order to guide the
constitutional convention of Argentina in the adoption or rejection of particular
institutions, his work differs in its extent, in its goal, and in its method from the
lineage of comparative works indicated by Dareste.
261
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 59
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
317
More importantly, Arosemena’s work shares with these comparative
constitutional works the underlying ideas that allowed the emergence of
comparative law in the nineteenth century, namely: a universal idea of
law common to all societies; the idea of law as an observable phenomena
subject to empirical laws that can be determined through observation;
and the ideas of development and evolution.263 Based on these ideas,
comparative law began to assume its distinctive trait as a method for
determining general legal principles across legal orders.264 As Riles puts
it, “the founding moment of comparative law was also a moment of
acknowledgement that comparative law is [only] a ‘method,’ not a science.”265 This article has shown how Arosemena constructed his version
263
See, e.g., SCHNITZER, supra note 255. Commenting on the conceptual
requirements for the emergence of comparative law, Schnitzer says:
Die Rechtsvergleichung als selbständiger Zweig der Rechtswissenschaft entsteht
also—und kann erst entstehen—nachdem Naturrecht und historische
Rechtsschule vorangegangen waren. Aus dem Naturrecht entnimmt die neue
Wissenschaft zunächst den Begriff der allgemeinen Rechtsidee, aus der
historischen Schule den Sinn für die Feststellung des konkreten Geschehens, das
als Unterlage der Vergleichung dienen kann. Aus der Naturwissenschaft wird der
Begriff des Gesetztes übernommen, aus der Philosophie der Begriff der
Entwicklung.
Id. at 19. See also 3 LÉONTIN-JEAN CONSTANTINESCO, 3 RECHTSVERGLEICHUNG: DIE
RECHTSVERGLEICHENDE WISSENSCHAFT 44 (1983) (indicating that based on the predominant nineteenth century scientific notions about progress, development, and the
use of natural science-like methods for social sciences, the comparativist believed that
“der Gegenstand der Rechtsvergleichung liege darin, die “Gesetze” zu entdecken, die
die Entwicklung der Gesellschaften und der Völker und die Entwicklung der Rechtsinstitute und des Rechts beherrschenten”); Rolf Kreimer, Josef Kohler, in RECHTSVERGLEICHER—VERKANNT, VERGESSEN, VERDRÄNGT 145, 146 (Bernhard Grobfeld
ed., 2000) (“In Deutschland beschäftigten sich zunächst nur Juristen mit der ethnologischen Rechtsforschung. Sie meinten, alle Völker hätten Normen, die man als
Gesetze erfassen könne.”). Further, Kreimer mentions that in 1872, the Bremer
Richter Albert Hermann Post (1839-1895) published the “Einleitung in ein Naturwissenschaften des Rechts,” which aimed to establish the evolution of the law with a
natural sciences-like accuracy. Id. at 146. See also JOHN H. MERRYMAN ET AL, THE
CIVIL LAW TRADITION: EUROPE, LATIN AMERICA, AND EAST ASIA 2 (1994) (commenting that “[l]egal science, an invention of German legal scholars, was an attempt
to make law a science in the way that chemistry and physics are sciences.”).
264 See MARKKU KIIKERI, COMPARATIVE LEGAL REASONING AND EUROPEAN
LAW 19 (2001) (stating that “nineteenth century comparative law had two basic
features. Firstly, comparative law had gained a relatively independent status as
methodology and science, and, secondly, the task of comparison was to construct,
scientifically, common rules at the international level.”).
265 Riles, supra note 37, at 11. Riles also notes that “[e]qually important to the
comparative lawyer from the outset were the projects comparative law as a discipline
might serve—the unification of law, the development of a ‘universal common law’ for
transnational business and other relations, the uses of comparative information about
foreign legal systems for legal reforms projects.” Id.
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 60
22-JAN-04
15:28
318 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
of a comparative constitutional method based on Tocqueville, Hildreth,
Mill, Laboulaye, and Colmeiro.
C. Justo Arosemena: Unexplored Precursor
The influence of Constitutional Studies on Latin American constitutional law developments has been meager. Hypotheses for its lack of
influence may open other lines of inquiry for future research. One explanation could be Arosemena’s radical liberal ideas, such as recognizing the
right of women to vote and recognizing the indigenous peoples as true
citizens of conservative societies. But this is only a partial explanation. A
brief survey of some constitutional law books written in Latin America,
usually for teaching purposes, in Arosemena’s time shows a strong liberal
ideological influence. For instance, the Portuguese Pinheiro Ferreira
wrote his book to help the transition from absolutism to a representative
system.266 Pinheiro Ferreira’s book was also translated into Spanish and
was widely known.267 It is considered the first to develop a constitutional
liberal theory in the Portuguese language.268 Pinheiro Ferreira’s exposition showed a special care for defining categories, in which the influence
of Benjamin Constant is noticeable, particularly in the chapter about the
moderative power.269 Similarly, the Colombian Cerbeleón Pinzón, in his
two-volume Tratado de Ciencia Constitucional,270 written to use for
instruction at the Colegio Vélez, pointed out the standard subjects of constitutional law for organizing a liberal republic: legislative, executive, and
judicial powers, fundamental guarantees, municipal government, and
constitutional power. Pinzón acknowledged using Curso de Polı́tica Constitucional by Benjamin Constant, albeit critically, because Constant’s
work deals with the organization of a monarchy.271
266
See FERREIRA, supra note 80.
See, e.g., JOSÉ VICTORINO LASTARRIA, ELEMENTOS DE DERECHO PÚBLICO
CONSTITUCIONAL TEÓRICO, POSITIVO I POLÍTICO. ARREGLADOS I ADAPTADOS A LA
ENSEÑANZA DE LA JUVENTUD AMERICANA xviii (2d ed. 1848). Lastarria wrote his
book for teaching purposes, recognizing that he took the philosophical notions of
constitutional law for the Spanish America mainly from these works: HEINRICH
AHRENS, CURSO DE DERECHO NATURAL Ó DE FILOSOFÍA DEL DERECHO (P.
Rodriguez Hotelano and M. Ricardo de Asensi trans., 6th ed. 1839); J. C. L. SIMONDE
DE SISMONDI, ETUDES SUR LES CONSTITUTIONS DES PEUPLES LIBRES (1836);
FERREIRA, supra note 80; and BENTHAM, supra note 129.
268 See Vicente Barretto, Introdução ao pensamento polı́tico de Silvestre Pinheiro
Ferreira, in SILVESTRE PINHEIRO FERREIRA, 7 IDÉAS POLÍTICAS: CARTAS SOBRE LA
REVOLUÇÃO DO BRASIL, MEMÓRIAS POLÍTICAS SOBRE OS ABUSOS GERAIS, MANUEL
DO CIDADÃO EM UM GOVERNO REPRESENTATIVO 11, 11-12 (1976).
269 Cf. BENJAMÍN CONSTANT, CURSO DE POLÍTICA CONSTITUCIONAL (Marcial
Antonio López trans., 2d ed. 1823).
270 CERBELEÓN PINZÓN, TRATADO DE CIENCIA CONSTITUTIONAL (1839).
271 Pinzón acknowledged having used ALBERT FRITOT, SCIENCE DU PUBLICISTE
(1820-1821). The prevailing view in Colombia was that Constant’s work was not
267
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 61
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
319
In addition, Constant’s liberal ideology permeated the constitutional
law books of Arosemena’s time through other sources. For instance,
González, who wrote his book, Lecciones de Derecho Constitutional for
teaching purposes at the University of Buenos Aires, Argentina,272
pointed out that his was the first book in Spanish that elucidated the
republican governmental theory as practiced in the United States. One of
the main sources for González was Laboulaye, who identified himself
with the liberal notions of Benjamin Constant.273 In short, in
Arosemena’s time, internal public law or constitutional law was understood in South America as a set of principles for organizing a liberal
republic. The French tradition, via Benjamin Constant, was substantial in
this discourse. Thus, the liberal theory in Constitutional Studies was likely
to have grown from Constant’s liberal discourse, a common denominator
in the development of constitutional law in South America. Therefore,
the radical liberal ideology of Arosemena does not seem a strong hypothesis for explaining his lack of influence in South America.
More likely, the answer to the lack of influence of Arosemena’s work
lies in his approach. During the nineteenth century, the Latin American
societies were consolidating national states.274 Consequently, the efforts
of legal scholars in each of the Latin American countries were directed
towards developing a national jurisprudence. Arosemena’s idea of harmonizing national legal orders to achieve a liberal republican standard
among the Latin American countries may have been seen as utopian and
appropriate for a republic. See generally ANTONIO DEL REAL, ELEMENTOS DE
DERECHO CONSTITUCIONAL SEGUIDOS DE UN EXÁMEN CRÍTICO DE LA CONSTITUCIÓN
NEO-GRANADINA (1839).
272 See GONZÁLEZ, LECCIONES DE DERECHO CONSTITUCIONAL, supra note 149.
273 Eduard Laboulaye, Avertissement de la Présente Edition to BENJAMIN
CONSTANT, COURSE DE POLITIQUE CONSTITUTIONNELLE (Arno Press, Inc. 1979)
(1872) (“His Course of Constitutional Politics is the most complete manual, the most
reliable guide for the student, the publicist, and the legislator. In Benjamin Constant’s
school, one always teaches oneself; one never distances oneself from him with
impunity.”) (author translation). For the influence of Constant in Mexico compare 1
M. L. MACAREL, CURSO COMPLETO DE DERECHO PÚBLICO GENERAL 17-20 (D. A.
Sánchez Bustamante trans. 1835) (consulting Constant and Fritot). Cf. Luis Palma,
Forword to CONSTITUCIÓN DE 1857, EDICIÓN FACSIMILAR NÁHUATL-ESPAÑOL (1994)
(1888) (mentioning Macarel and Tocqueville as influences in the ideas of the Mexican
nineteenth century).
274 See Benjamı́n Vargas Peña, Estudio preliminar to DARDO RAMÍREZ BRASCHI,
LA GUERRA DE LA TRIPLE ALIANZA A TRAVES DE LOS PERIODICOS CORRENTINOS
1865-1870 5, 6 (2000) (referring to the period 1865-1870 during the War of the Triple
Alliance, in which Brazil, Argentina, and Uruguay fought Paraguay, and commenting
that it was a time of national affirmation at the popular level, while the leaders
attempted to keep a continental unity: “Estábamos creando << nuestros precedentes
propios fundamentados de nuestras Patrias, sobre desentendimientos de egoı́stas>> .
En el pensamiento de lo común y vulgar, mientras los lı́deres que nos conducı́an a la
libertad pretendieron mantener la unidad continental.”).
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 62
22-JAN-04
15:28
320 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
running against national ideologies. Moreover, Latin American legal
scholars at that time did not consider other Latin American legal orders
worthy of analysis; only the European or American ones were worthy of
study.275 For example, the Chilean Lastarria asserted that in South
America there was a lack of originality regarding constitutional law, and
that examining it was needless, because Europe offered rich and proven
experience with constitutional institutions. Lastarria was persuaded that
the virtue of a new continent was only to transfer European institutions.276 Also, González sought to promote an American constitutional
theory for Argentina. He believed the American constitutional institutions were already proven successful in practice; therefore, the Argentine
Republic should adopt them.277 Even works such as Bases y Punto de
Partida para la organización Polı́tica de la República de Argentina by
Alberdi analyzed some Latin American constitutions through cursory
comparisons, only to point out some of their deficiencies.278 According to
Alberdi, Argentina should avoid these deficiencies in drafting its constitution and should follow instead for its organization the Constitution of
California.279 Contrariwise, Arosemena’s work sought to analyze the constitutional organization of each of the Latin American countries to infer
from them the most acceptable institutional arrangements depending on
the countries’ particular circumstances. Arosemena deplored that decontextualized imitations of European and American institutions in Latin
American circumstances had rendered these institutions ineffectual in
their new environment. This different conception explains the exceptionality of Constitutional Studies in the nineteenth century Latin Americas,
and at the same time, it explains its limited influence.
275
Cf. BERNHARD GRObFELD, MACHT UND OHNMACHT DER
RECHTSVERGLEICHUNG 75 (1984) (quoting ALAN WATSON, THE MAKING OF THE
CIVIL LAW 183 (1981), on the “transplant bias” in comparative law that results when
institutions from one legal order are transferred into another, a bias that is not only
based on the institutions’ technical virtues, but on the cultural status or power of the
societies). For a discussion about the transplantation of legal institutions, compare
ADAPTING LEGAL CULTURES (David Nelken & Johannes Feest eds., 2001). See also
Aldo Ferrer, El MERCOSUR En Un Mundo Global, in LA DIMENSIÓN CULTURAL
DEL MERCOSUR 11-12 (Hebe Clementi ed., 1996) (saying that the point of
references for Argentina and Brasil were Europe and the United States, and that
Europe and the United States have little contact between them if any).
276 See LASTARRIA, supra note 267, at xiii.
277 See GONZÁLEZ, LECCIONES DE DERECHO CONSTITUCIONAL, supra note 149, at
xiv-xv.
278 See ALBERDI, supra note 262, at 39-52.
279 Id. at 53. See also LUIS L. VARELA, ESTUDIOS SOBRE LA CONSTITUCIÓN DE
BUENOS AIRES 16 (1868) (saying that the American republics made a mistake seeking
doctrines and institutions in Europe because the American Revolution brought new
public law doctrines only applicable to the American societies).
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 63
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
321
Another reason that may have plausibly contributed to the limited
influence of Constitutional Studies lies in what Arosemena understood by
the integration of Latin America. Traditionally in Latin America, integration was considered from a national perspective, as aimed toward unifying states. This is the Bolivarian tradition.280 Arosemena thought of
integration from a multinational perspective, and as aimed toward freeing
the movement of people. In Arosemena’s conception, the role of the government was limited to ensure fundamental rights and to allow measures
necessary to harmonize those rights. He wanted, for example, a person
born in Argentina to be able to move to Chile and to continue to enjoy
similar fundamental rights. Arosemena expected that giving this free
movement would result in people’s identification with a Latin American
community rather than with any particular national state. He argued that
by freeing the movement of people within a community, a unification of
the states could take place naturally. But this was neither a preordained
outcome nor a desirable one necessarily. Arosemena was concerned that
a supranational government could curtail individual freedoms and the
Latin American local communities. For that reason, he said that any initiative seeking transnational structures must also simultaneously seek
stronger autonomy for local governments. From this point of view, it is
not a paradox that Arosemena promoted a Panamanian Federal State
within the Republic in Colombia, and at the same time promoted a Latin
American community. To sum up, a work aiming to harmonize Latin
American legal orders and seeking to develop a Latin American constitutional community for the benefit of the people, but without unification of
governments, must have been considered outside of the mainstream and
easily discarded as utopian.
Arosemena’s integrationist ideal was rooted in realities, however. He
understood that international relations are determined by gross powers,281 and that to ensure the independence and freedom of the Latin
American nations, a big umbrella was needed. He understood also that
this umbrella should not be constructed militarily, but by consensus, in
order to last. In addition, he saw above all that a constitutional democ280
See generally INTRODUCCIÓN A SIMÓN BOLÍVAR, supra note 28.
See generally CARL SCHMITT, DER NOMOS DER ERDE. IM VÖLKERRECHT DES
JUS PUBLICUM EUROPAEUM 163, 256 (3d ed. 1988) (1950) Schmitt comments that
“the recognition of a big power by another big power is the highest form of
recognition in international law.” Id. at 163 (author translation). For example, Russia
and Prussia in the eighteenth century and Italy in the nineteenth century were
recognized as big powers by other large powers of their time. See id. According to
Schmitt, the recognition of the United States as a big power around 1865 presented a
unique problem because the 1823 Monroe doctrine implicated the rejection of that
recognition by European powers. In other words, the new order of the western
hemisphere called into question the European geopolitical organization of the globe.
See id. at 256. Cf. Robert Kagan, Power and Weakness, 113 POLICY REVIEW ONLINE
(Jun. & Jul. 2002) at http://www.policyreview.org/JUN02/ kagan.html.
281
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 64
22-JAN-04
15:28
322 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 21:259
racy that ensures individual freedom and is not an abstract recipe of
imported models, but rather a native development of particular societies,
has to be the core value in any integrationist project. Using comparative
law, Arosemena set himself to the task of determining what changes were
needed to develop a sound and lasting democracy in Latin America. His
ideals were not only inspired by the study of the most advanced literature
on political theory, on constitutional law, and on comparative law, but
also by experience. His cosmopolitan vision was enhanced by diplomatic
missions in Chile, Venezuela, Great Britain, France, and the United
States; the practice of journalism in Peru; the practice of law in New York
and Panama; participation in constitutional conventions in Colombia;
drafting numerous constitutional projects and codifications; extensive
travels trough Latin America, Europe, and the United States; and
involvement in congresses discussing integration.282
V.
CONSTITUTIONAL STUDIES IN THE LATIN AMERICAN
LEGAL TRADITION
Constitutional Studies is not merely a compilation of constitutional
texts. Arosemena defined his book as a “curso familiar è informal de derecho público interno comparado” (familiar and informal course of comparative internal public law).283 For its subject matter, structure, and
method, this definition is accurate. It is familiar because it addresses a
general audience. It is informal because the constitutional topics are scattered through the exposition. It is internal public law because its subject
matter focuses on the constitutional organization of the Latin American
societies. Finally, it is comparative because Arosemena’s method, neutral
in its consideration of legal orders, attempted inductively and systematically to determine categories for a more efficient constitutional policymaking. This method, close to current standards of comparative constitutional law, is Constitutional Studies’ main contribution. Participating in
the early developments of comparative law during the nineteenth century, the “Era of Comparison,”284 Arosemena sought to facilitate democracy by applying the most advanced comparative method available to the
Latin American Legal orders.
Constitutional Studies should be read with more acumen today.
Democracy reigns almost undisputed in Latin America after dictatorships
and authoritarian governments blemished Latin American history for
many years. Latin America should aspire to rediscover its democratic tradition. Constitutional Studies is one milestone of this tradition. As the first
systematic work of comparative constitutional law in Latin America,
282 For a chronology of the life and work of Arosemena see JUSTO AROSEMENA,
FUNDACIÓN DE LA NACIONALIDAD PANAMEÑA, supra note 231, at 337-505.
283 ESTUDIOS CONSTITUCIONALES 2d Edition, supra note 39, at foreword.
284 Cf.
STOLLEIS, NATIONALITÄT UND INTERNATIONALITÄT: RECHTSVERGLEICHUNG IM ÖFFENTLICHEN RECHT DES 19. JAHRHUNDERTS, supra note 172, at 5.
\\server05\productn\B\BIN\21-2\BIN202.txt
2003]
unknown
Seq: 65
22-JAN-04
COMPARATIVE LAW AT THE SERVICE OF DEMOCRACY
15:28
323
Constitutional Studies is a source and a testimony. As a source, it represents the best example of a comparative constitutional law tradition in
Latin America. As a testimony, it provides inspiration to continue consolidating a common democratic motherland. Undeniably, the comparative
law method used by Arosemena has become accepted convention, and
some of its features have been surpassed. Yet, if there is something that
Arosemena offers us today, it is the spirit of his perspective. More than
ever, “globalisation and interdependence . . . dictate that even the most
local phenomenon needs to be viewed in ever widening contexts, up to
and including the world and humankind in general.”285 In a world
threatened anew by iconoclastic ideologies that have given distressing
meaning to the date September 11th, Arosemena’s hopes for a universal
society linked by cultural, economic, and technological ties, in which
human rights prevail over governmental power, are a timely reminder of
the possibilities that lie ahead, if we only dare.
285
TWINING, supra note 26, at 89.
\\server05\productn\B\BIN\21-2\BIN202.txt
unknown
Seq: 66
22-JAN-04
15:28